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https://archive.org/details/churchstateinmexOOguth 


Cfturct)  anb  &tate  m  JWexico 


OPINION  OF  AMERICAN  COUNSEL 

AS  TO  THE  PROVISIONS  OF  THE  MEXICAN  CONSTITUTION  OF 

1917  AND  OF  THE  DECREE  OF  PRESIDENT  CALLES  OF 

JUNE  14,  1926. 

The  opinion  of  American  counsel  has  been  requested 
in  regard  to  the  provisions  of  the  Mexican  Constitu¬ 
tion  of  1917  and  of  the  Decree  of  President  Calles  of 
June  14,  1926,  which  relate  to  religion  and  education 
in  Mexico  in  so  far  as  these  provisions  affect  the  rights  of 
the  Roman  Catholic  Church  and  of  the  ministers  and 
members  of  that  faith  in  Mexico.  For  the  purpose  of 
this  opinion,  it  will  be  assumed,  although  apparently 
doubtful,  that  the  Mexican  Constitution  of  1917  was 
legally  adopted  and  that  the  Presidential  Decree  of  1926 
was  legally  issued.  The  Constitution  was,  however, 
never  submitted  to  the  people  of  Mexico,  but  was  im¬ 
posed  upon  them  by  a  revolutionary  and  militant 
minority  without  due  action  on  the  part  of  the  Mexican 
Congress.  It  is  further  assumed,  after  investigation  and 
conference  with  Mexican  counsel,  that,  in  the  respects  dis¬ 
cussed  below,  the  Roman  Catholic  Church  and  her 
bishops,  priests  and  laymen,  as  well  as  all  other  churches 
in  Mexico,  are  now  substantially  remediless  in  the  local 
courts  so  far  as  Mexican  law  and  procedure  are  applicable 
to  the  matters  dealt  with  in  this  opinion,  and  that  resort 
thereto  would  be  entirely  vain  and  futile. 


The  provisions  of  the  Mexican  Constitution  and 
Presidential  Decree  specifically  discussed  below  are  in  the 
opinion  of  the  undersigned  American  counsel  in  violation 
of  long-established  rules  of  international  law  and  of  the 
fundamental  principles  of  liberty  and  justice  which  are 
recognized  in  all  civilized  countries,  as  well  as  in  viola¬ 
tion  of  fundamental  and  essential  principles  of  con¬ 
stitutional  law,  as  that  term  is  understood  among  Ameri¬ 
cans,  in  that  they  conflict  with  American  elementary  con¬ 
ceptions  of  liberty,  private  property,  free  exercise  of 
religion,  and  freedom  of  speech  and  of  the  press.  The  pro¬ 
visions  hereinafter  mentioned  would  in  the  opinion  of  the 
undersigned  be  held  by  American  courts  to  be  unconstitu¬ 
tional  and  void  whether  enacted  by  Congress  or  by  any 
State  Legislature.  It  is  regretted  that  the  limits  of  a  legal 
opinion  prevent  a  more  comprehensive  and  exhaustive 
discussion  of  far-reaching  principles  of  human  freedom 
and  of  the  rights  of  men  which  are  not  challenged  in 
any  country  or  under  any  regime  worthy  of  the  name 
of  liberty,  equality,  or  fraternity  in  the  true  and  vivify¬ 
ing  sense  of  each  of  these  political  principles,  but  which 
are  now  being  violated  in  Mexico. 

The  principal  questions  arising  under  the  Mexican 
Constitution  of  1917  and  the  Presidential  Decree  of 
1926,  which  latter  professes  to  carry  out  and  enforce  the 
Constitution  and  render  it  practically  effective,  will  be 
considered  as  concisely  as  practicable  under  five  sub¬ 
divisions  or  heads,  viz.,  (1)  international  law,  (2)  sepa¬ 
ration  of  Church  and  State,  (3)  confiscation  of  church 
property,  (4)  education,  and  (5)  international  relations. 

The  translation  of  the  Mexican  Constitutions  of 
1857  and  1917,  which  was  printed  this  year  by  the 


2 


United  States  Government  Printing  Office  at  Washing¬ 
ton,  will  be  used  in  connection  with  this  opinion,  al¬ 
though  in  respect  of  important  terms  and  their  possible 
construction  by  officials  or  courts  in  Mexico,  an  effort 
has  been  made  to  verify  such  translation  by  reference  to 
dictionaries,  publications  and  conference  with  Mexican 
counsel,  to  the  end  that  so  far  as  practicable  the  risk  of 
misinterpretation  or  misrepresentation  in  so  important  a 
matter  should  be  avoided.  The  extracts  from  the  Mexi¬ 
can  Constitution  and  Presidential  Decree  are  not  sum¬ 
marized  and  hence  are  unavoidably  lengthy,  because  any 
epitome  might  seem  either  incredible  or  distorted,  and  the 
actual  provisions  must,  consequently,  be  left  to  speak  for 
themselves. 


1. 

VIOLATION  OF  RIGHTS  OF  ROMAN  CATHOLIC  CHURCH 
UNDER  INTERNATIONAL  LAW, 

The  Mexican  Constitution  of  1917  provides  in 
Article  130  that — 

“The  law  recognizes  no  juridical  [r.  e.  juristic] 
personality  in  the  religious  institutions  known  as 
churches." 

The  deliberate  intent  and  the  direct  effect  of  this  con¬ 
stitutional  enactment  is  that  all  churches  in  Mexico  are 
denied  the  right  either  to  petition  the  Mexican  Congress 
or  to  appeal  to  the  courts  for  redress  of  wrongs,  however 
grave  and  unlawful,  or  for  protection  against  oppression 
or  violation  of  the  commonest  rights  by  government  offi¬ 
cials  or  otherwise.  The  churches  are  deprived  of  all 
means  of  redress  and  protection,  and  denied  any  legal  or 


3 


juristic  personality  whatever;  and  the  Roman  Catholic 
Church  cannot  appeal  to  Congress  or  to  the  courts  to 
enforce  its  property  rights,  which  is  in  direct  violation 
of  long-established  principles  of  international  law,  or  as 
it  is  termed  in  Europe,  Africa  and  Asia,  the  law  of  na¬ 
tions,  or  the  jus  gentium  of  the  Roman  law. 

Thus,  last  September,  when  the  Roman  Catholic 
Hierarchy,  to  which  faith  belong  fully  ninety-five  per 
centum  of  the  Mexican  population  so  far  as  it  professes 
any  Christian  faith,  respectfully  presented  to  the  Mexican 
Congress  a  petition  seeking  the  redress  of  grievances  and 
protection  against  violations  of  church  rights  which  are 
recognized  to-day  by  every  civilized  country  in  the  world 
and  protesting  against  the  confiscation  of  church  property, 
the  petition  was  laid  on  the  table  and  wholly  disregarded, 
if  not  spurned,  either  because  the  Catholic  Church  under 
the  Mexican  Constitution  of  1917  had  no  juridical 
(juristic)  personality  or  capacity  to  present  any  petition 
whatever,  or  because  the  Catholic  Bishops  so  petitioning 
had  lost  their  citizenship  and  right  to  petition  by  having 
violated  Article  37,  which  provides  as  follows: 

“Art.  37.  Citizenship  shall  be  lost:  .  .  . 

“III.  By  compromising  themselves  in  any  way  be¬ 
fore  ministers  of  any  religious  creed  or  before  any  other 
person  not  to  observe  the  present  Constitution,  or  the 
laws  arising  thereunder."  * 

This  denial  to  the  Roman  Catholic  Church  of  juristic 
entity  or  personality  violates  international  law  among 
all  civilized  nations  under  principles  of  universal  accept- 


*  See  The  New  York  Times,  October  3,  1926,  and  appendix  hereto  con¬ 
taining  statement  of  Mexican  Episcopate. 


4 


ance  “both  in  the  law  of  continental  Europe  and  in  the 
common  law  of  England,"  as  has  been  emphatically 
declared  by  the  Supreme  Court  of  the  United  States. 

In  the  case  of  Ponce  V.  Roman  Catholic  Church 
(1908),  210  United  States  Reports,  pp.  296  et  seq.,  that 
court  was  called  upon  to  consider  and  adjudicate  upon  the 
issue  whether  the  Roman  Catholic  Church  could  sue  in 
Porto  Rico  to  protect  its  property  rights  against  at¬ 
tempted  spoliation.  The  case  is  especially  instructive 
because  the  court  reviewed  the  history  of  Spain  in  re¬ 
spects  equally  applicable  to  Mexico,  which  was  itself  for 
centuries  a  Spanish  colony  or  dominion.  The  opinion 
was  delivered  by  the  late  Chief  Justice  Fuller,  and  among 
the  statements  applicable  to  the  present  discussion  (at 
pp.  314-15,  318-19)  were  the  following: 

“The  Spanish  law  as  to  the  juristic  capacity  of  the 
church  at  the  time  of  the  cession  [t.  e,,  of  Porto  Rico 
from  Spain  to  the  United  States  in  1919  under  the 
Treaty  of  Paris]  merely  followed  the  principles  of  the 
Roman  law,  which  have  had  such  universal  acceptance, 
both  in  the  law  of  continental  Europe  and  in  the  com¬ 
mon  law  of  England.  .  .  .  The  right  of  the  church  to 
own,  maintain  and  hold  such  properties  was  unques¬ 
tioned,  and  the  church  continued  in  undisputed  pos¬ 
session  thereof.  .  .  . 

“This  was  the  status  at  the  moment  of  the  annexa¬ 
tion,  and  by  reason  of  the  treaty,  as  well  as  under  the 
rules  of  international  law  prevailing  among  civilized 
nations,  this  property  is  inviolable. 

“The  corporate  existence  of  the  Roman  Catholic 
Church,  as  well  as  the  position  occupied  by  the  Papacy, 
has  always  been  recognized  by  the  Government  of  the 
United  States.  .  .  , 


5 


“The  proposition,  therefore,  that  the  church  had  no 
corporate  or  jural  personality  seems  to  be  completely 
answered  by  an  examination  of  the  law  and  history  of 
the  Roman  Empire,  of  Spain  and  of  Porto  Rico  down 
to  the  time  of  the  cession,  and  by  the  recognition  ac¬ 
corded  to  it  as  an  ecclesiastical  body  by  the  Treaty  of 

Paris  and  by  the  law  of  nations . 

. by  the  Spanish  law,  from  the  earliest 

moment  of  the  settlement  of  the  island  to  the  present 
time,  the  corporate  existence  of  the  Catholic  Church 
has  been  recognized." 

In  concluding  the  unanimous  opinion  of  the  Supreme 
Court,  its  learned  and  revered  Chief  Justice  used  the 
following  language  (pp.  323-4)  : 

“We  accept  the  conclusions  of  appellee's  counsel 
[Messrs.  Coudert,  Kingsbury  and  Fuller]  as  thus  sum¬ 
marized:  .  .  . 

“  'Second.  The  Roman  Catholic  Church  has  been 
recognized  as  possessing  legal  personality  by  the 
Treaty  of  Paris  and  its  property  rights  solemnly  safe¬ 
guarded.  In  so  doing  the  treaty  has  merely  followed 
the  recognized  rule  of  international  law  which  would 
have  protected  the  property  of  the  church  in  Porto 
Rico  subsequent  to  the  cession.  This  juristic  person¬ 
ality  and  the  church's  ownership  of  property  had  been 
recognized  in  the  most  formal  way  by  the  concordats 
between  Spain  and  the  Papacy  and  by  the  Spanish  laws 
from  the  beginning  of  settlements  in  the  Indies.  Such 
recognition  has  also  been  accorded  the  church  by  all 
systems  of  European  law  from  the  fourth  century  of 
the  Christian  era. 


6 


“  ‘Third.  The  fact  that  the  municipality  may  have 
furnished  some  of  the  funds  for  building  or  repair¬ 
ing  the  churches  cannot  aifect  the  title  of  the  Roman 
Catholic  Church,  to  whom  such  funds  were  thus  irre¬ 
vocably  donated  and  by  whom  these  temples  were 
erected  and  dedicated  to  religious  uses.’  ” 

This  decision  of  the  Supreme  Court  of  the  United 
States  establishes  that  the  provision  of  the  Mexican  Con¬ 
stitution  of  1917,  Article  130,  denying  juristic  person¬ 
ality  to  the  churches  is  clearly  in  violation  of  a  recognized 
rule  of  international  law.  To  the  same  effect  are  the 
decisions  in  the  cases  of  Santos  V.  Roman  Catholic 
Church,  212  United  States  Reports,  at  pp.  463  et  seq., 
and  Barlin  V.  Ramirez,  7  Philippine  Reports,  at  pp.  41 
et  seq. 

There  can  be  no  doubt  whatever,  in  the  opinion  of 
the  undersigned  American  counsel,  that  if  such  a  provi¬ 
sion  as  is  contained  in  Article  130  of  the  Mexican  Consti¬ 
tution  of  1917,  depriving  the  Roman  Catholic  Church 
of  juristic  personality  and  thereby  of  the  right  to  sue  or 
to  petition,  were  contained  in  any  statute  of  our  Federal 
Congress  or  in  any  state  constitution  or  statute,  it  would 
be  declared  by  our  courts  of  justice  to  be  unconstitutional 
and  void  because  depriving  the  Roman  Catholic  Church 
of  liberty  and  property  without  due  process  of  law  and 
denying  to  it  the  equal  protection  of  the  law,  which  lat¬ 
ter  principle  is  itself  contained  in  and  of  the  very  essence 
of  “due  process  of  law’’  in  American  jurisprudence.  If, 
moreover,  there  were  now  any  international  judicial 
tribunal,  such  as  the  Permanent  Court  of  International 
Justice,  which  had  jurisdiction  over  Mexico  and  of  such 
controversies,  or  power  to  enunciate  an  advisory  opinion 


7 


thereon  (as  to  which  the  undersigned  is  not  called  upon 
at  present  to  express  an  opinion),  the  juristic  personality 
of  the  Roman  Catholic  Church  would  be  upheld  within 
the  universally  recognized  rule  of  international  law  illus¬ 
trated  as  above  by  a  Chief  Justice  of  the  United  States 
speaking  for  the  unanimous  court. 

Indeed,  as  stated  by  Chief  Justice  Fuller,  “the  corpo¬ 
rate  existence  of  the  Roman  Catholic  Church,  as  well  as 
the  position  occupied  by  the  Papacy,  has  always  been 
recognized  by  the  Government  of  the  United  States.” 
Many  examples  might  be  cited  and  would  be  were  it  not 
for  the  necessarily  limited  length  of  this  opinion.  But 
conspicuous  and  most  pertinent  among  these  examples 
would  be  the  controversy  which  arose  between  the 
Roman  Catholic  Church  and  the  Republic  of  Mexico  in 
respect  of  the  fund  known  as  the  “Pious  Fund  of  Cali¬ 
fornia,”  which  Mexico  sought  to  confiscate  although  such 
fund  had  had  a  separate  existence  recognized  by  her  sev¬ 
eral  governments  for  the  period  of  one  hundred  and  sixty 
years.  The  Government  of  the  United  States  intervened 
on  behalf  of  the  Roman  Catholic  Bishops  in  whom  the 
title  and  control  of  such  fund  had  become  vested  as  mat¬ 
ter  of  right.  By  those  readers  who  are  interested  in  hav¬ 
ing  full  and  accurate  information  upon  this  important 
subject,  reference  should  be  made  to  The  History  of  the 
Pious  Fund  of  California,  by  John  T.  Doyle,  San  Fran¬ 
cisco,  California,  1887  (a  publication  of  The  California 
Historical  Society),  and  The  Hague  Arbitration  Cases, 
by  George  Grafton  Wilson,  Boston,  1915. 

As  this  opinion  is  being  finally  revised,  the  press  con¬ 
tains  information*  of  the  submission  by  President  Calles 

*  See  The  Neiv  York  Times  of  November  7,  1926. 


8 


to  the  Mexican  Congress  of  a  still  more  rigid  church  bill, 
which  is  to  emphasize  that  the  law  no  longer  recognizes 
any  legal  or  juristic  personality  in  the  religious  groups 
known  as  churches  and  that  consequently  churches  do 
not  have  any  of  the  rights  which  the  law  concedes  to 
persons.  It  is  reported  that  the  purpose  of  the  Presi¬ 
dent  in  this  bill  is  to  seal  any  possible  loophole  and  to 
prepare  the  way  for  the  rigid  and  absolute  enforcement 
of  the  religious  clauses  of  the  Mexican  Constitution.  It 
is  further  stated  that  if  Congress  does  not  pass  the  bill, 
President  Calles  has  power  to  promulgate  it  on  his  own 
account.  Thus,  even  if  some  of  the  religious  clauses  of 
the  Mexican  Constitution  of  1917  might  be  reasonably 
interpreted  and  enforced,  the  extent  to  which  a  hostile 
Congress  or  President  may  go  is  unlimited.  In  the  lead¬ 
ing  case  of  Yick  Wo  v.  Hopkins  (1886),  118  United 
States  Reports,  at  pp.  356,  373,  the  Supreme  Court  of 
the  United  States,  in  holding  that  a  Chinaman  was  en¬ 
titled  to  the  full  protection  of  our  Constitution,  among 
other  things,  said: 

“Though  the  law  itself  be  fair  on  its  face  and  im¬ 
partial  in  appearance,  yet,  if  it  is  applied  and  admin¬ 
istered  by  public  authority  with  an  evil  eye  and  an 
unequal  hand,  so  as  practically  to  make  unjust  and 
illegal  discriminations  between  persons  in  similar  cir¬ 
cumstances,  material  to  their  rights,  the  denial  of 
equal  justice  is  still  within  the  prohibition  of  the  Con¬ 
stitution.” 

2. 

THE  ALLEGED  SEPARATION  OF  CHURCH  AND  STATE. 

It  is  believed  that  it  may  facilitate  a  better  and  truer 
understanding  of  the  questions  involved  in  the  Mexican 

9 


situation  if  it  be  at  the  outset  appreciated  that,  whatever 
may  be  protested  or  pretended  in  its  behalf  and  defense, 
the  Mexican  Government  is  not  attempting  in  good  faith 
to  bring  about  the  separation  of  Church  and  State  as 
Americans  conceive  the  substance  of  such  separation,  nor 
is  it  attempting  merely  to  prevent  alleged  ecclesiastical 
intervention  or  interference  in  politics  or  in  matters  of 
state.  On  the  contrary,  both  the  Mexican  Constitution 
and  the  Presidential  Decree  now  in  question  are  calcu¬ 
lated  and,  indeed,  deliberately  intended  to  bring  about  a 
more  entire  domination  by  the  State  over  the  Church  than 
has  ever  existed  before,  and  to  place  under  the  absolute 
control  and  supervision  of  the  Mexican  Federal  and  State 
Governments  every  church  in  Mexico,  and  preeminently 
the  Roman  Catholic  Church  and  her  temples,  which,  to 
repeat,  represent  the  religious  faith  of  more  than  nineteen- 
twentieths  of  the  population.  The  membership  of  other 
churches,  it  is  understood  and  counsel  has  been  so  in¬ 
structed,  may  be  reasonably  asserted  to  be  comparatively 
almost  negligible  so  far  as  numbers  are  concerned;  but 
they,  of  course,  are  equally  affected  and  interested  and 
will  inevitably  be  equally  subjugated  and  oppressed  if 
they  ever  attempt  to  free  themselves  from  governmental 
control  and  direction,  though  unhappily  some  of  their 
spokesmen  do  not  seem  to  perceive  this  and  prefer  to  join 
in  the  attacks  on  the  Roman  Catholic  Church  in  Mexico. 

Under  the  1917  Constitution,  all  church  buildings 
in  Mexico  are  being  confiscated;  and  all  Catholic  orphan 
asylums,  hospitals,  colleges,  convents,  monasteries,  etc., 
though  devoted  as  they  are  to  the  noblest  of  charities, 
have  likewise  been  confiscated  and  arbitrarily  made  the 
property  of  the  State.  The  spoliation  has  been  as  com- 


10 


prehensive,  complete  and  ruthless  as  all-inclusive  lan¬ 
guage  and  vindictive  enforcement  could  make  it.  The 
churches  no  longer  own  anything  in  the  eyes  of  Mexi¬ 
can  constitutional  law!  As  we  have  seen  they  have  been 
deprived  of  all  juridical  or  juristic  personality  in  order 
to  deprive  them  even  of  the  right  to  appeal  for  protec¬ 
tion  or  redress  to  the  courts  of  justice  or  to  the  Mexican 
Congress.  The  Mexican  Government  proposes  to  deter¬ 
mine  which  of  the  church  buildings  so  confiscated  shall 
continue  to  be  used  for  the  holy  purpose  of  divine  wor¬ 
ship;  the  State  is  to  have  the  exclusive  power  to  determine 
the  number  of  ministers  of  any  creed  who  may  belong 
to  any  church,  and  these  must  be  Mexican  by  birth;  the 
State  is  to  license,  which  means  in  final  analysis  select, 
all  Catholic  priests,  all  Protestant  ministers,  all  Jewish 
rabbis;  the  churches  are  placed  at  all  times  under  the 
supervision  of  political  appointees,  and  the  federal  au¬ 
thorities  are  expressly  granted  by  the  Constitution  of 
1917  power  to  intervene  even  in  matters  of  religious 
worship  and  outward  ecclesiastical  forms  as  may  be  au¬ 
thorized  by  any  law,  that  is  to  say,  by  Presidential  Decree, 
or  legislation  by  the  Federal  Congress  or  the  several  State 
Legislatures. 

It  would,  as  it  seems  to  the  undersigned  American 
counsel,  be  simply  preposterous  to  claim  that  these  provi¬ 
sions  were  intended  to  produce  or  promote  in  good  faith 
the  separation  of  Church  and  State  in  Mexico.  On  the 
contrary,  a  more  complete  subjugation  of  Church  to  State 
could  not  be  devised  by  the  wit  of  man.  Certainly,  no 
precedent  of  any  such  complete  absorption  of  church  con¬ 
trol  and  regulation  or  governance  of  divine  worship  even 
in  state  churches  by  the  State  has  ever  before  been  at- 


11 


tempted  in  modern  times  except  in  Soviet  Russia  and 
Jacobin  France,  and  no  such  precedent  can  be  recalled  in 
the  history  of  Christianity  or  Judaism. 

The  Roman  Catholic  Church  is  not  opposing  the 
separation  of  Church  and  State  in  Mexico,  provided  such 
separation  be  not  a  sham  and  screen  and  will  leave  the 
Church  free  to  teach  the  Gospel  and  to  educate  children 
and  inculcate  sound  and  true  spiritual  doctrines  and 
moral  rules  of  conduct  without  dictation  from  or  super¬ 
vision  by  government  officials  and  subject  only  to  rea¬ 
sonable  police  regulations. 

In  the  opinion  of  the  undersigned  American  counsel, 
the  Roman  Catholic  Church  could  not  reasonably  or 
properly  have  accepted  or  submitted  to  any  such  control 
and  supervision  as  are  now  exercisable  by  the  Mexican 
Government  under  the  Mexican  Constitution  of  1917 
and  the  Presidential  Decree  of  1926.  In  fact,  had  the 
undersigned  been  consulted  prior  to  the  action  of  the 
Mexican  Catholic  Hierarchy  and  the  Papacy  in  ordering 
the  discontinuance  of  religious  services  in  the  Catholic 
churches,  he  would,  with  the  deepest  sense  of  professional 
duty  and  responsibility,  have  advised  the  cessation  of  all 
religious  services  under  such  governmental  control  and 
supervision,  because  in  his  opinion  submission  to  the  en¬ 
forcement  of  the  Constitution  and  Presidential  Decree 
would  inevitably  lead  to  the  subordination  of  the  Roman 
Catholic  Church  in  Mexico  to  the  power  of  the  State, 
the  dictation  of  politicians,  the  complete  union  of  Church 
and  State,  and  the  sacrifice  of  the  independence  and  free¬ 
dom  which  are  essential  to  the  true  and  proper  function¬ 
ing  and  discipline  of  any  church  of  whatever  religion. 
It  would  furthermore  be  absurd  and  preposterous  to  call 
such  a  condition  religious  liberty. 

12 


The  views  of  the  noblest  and  most  philosophic 
minds,  the  glory  of  the  human  intellect  during  the  past 
two  centuries,  might  readily  be  quoted  in  overwhelming 
support  of  the  proposition  that  church  government  must 
be  free  from  outside  governmental  and  political  dictation. 
Furthermore,  no  such  scheme  as  the  present  attempt  of 
Mexican  politicians  to  establish  a  Mexican  National 
Church  and  a  scission  from  due  church  government  under 
the  Roman  Catholic  Church  could  be  acquiesced  in  with¬ 
out  inevitably  leading  to  separation  from  Rome  and  the 
establishment  of  a  so-called  Mexican  National  Catholic 
Church  without  any  true  or  proper  Catholic  government 
thereof.  This  is  necessarily  in  clear  conflict  with  the  basic 
doctrine  of  the  Roman  Catholic  Church  and  the  deep 
belief  of  her  members  that  she  is  ecumenical  and  universal 
in  the  very  sense  and  scope  of  the  belief  that  all  peoples 
ought  to  worship  one  and  the  same  God,  and  that  their 
Church  was  founded  by  Christ,  true  God  and  true  Man, 
for  the  governance  of  the  spiritual  life  of  all  men  living 
under  all  skies,  irrespective  of  nationality  and  irrespective 
of  origin,  class,  or  condition  in  life,  even  of  servitude. 

But  above  this  consideration  is  a  fundamental  con¬ 
ception  which  all  in  her  holy  communion  profoundly 
believe,  and  that  is,  that  the  Roman  Catholic  Church  is 
not  only  of  divine  origin  but  is  destined  to  be  eternal  in 
the  destiny  of  man,  per  omnia  saecula  saeculorum.  With 
such  a  belief  and  a  polity  in  its  support  which  is  “the  very 
masterpiece  of  human  wisdom,"  the  Church  cannot  tem¬ 
porize  anywhere,  in  any  country,  with  such  a  subversive, 
tyrannical  and  destructive  system  as  is  now  being  main¬ 
tained  by  brutal  force  in  suffering  Mexico.  The  Roman 
Catholic  Church  must  be  true  to  her  mission,  though 
meantime  the  people  of  Mexico  may  have  to  endure  great 

13 


spiritual  suffering.  Eighty-six  years  ago  a  great  his¬ 
torian,  Macaulay,  who  was  hostile  to  and  prejudiced 
against  the  Papacy,  wrote  of  the  permanence,  not  to  say 
eternity,  of  the  Roman  Catholic  Church  in  a  famous  and 
familiar  passage,  the  following,  viz.: 

“There  is  not,  and  there  never  was  on  this  earth,  a 
work  of  human  policy  so  well  deserving  of  examina¬ 
tion  as  the  Roman  Catholic  Church.  The  history  of 
that  Church  joins  together  the  two  great  ages  of 
human  civilization.  No  other  institution  is  left  stand¬ 
ing  which  carries  the  mind  back  to  the  times  when  the 
smoke  of  sacrifice  rose  from  the  Pantheon,  and  when 
camelopards  and  tigers  abounded  in  the  Flavian 
Amphitheatre.  The  proudest  royal  houses  are  but  of 
yesterday  when  compared  with  the  line  of  the  Supreme 
Pontiffs.  That  line  we  trace  back  in  an  unbroken  series 
from  the  Pope  who  crowned  Napoleon  in  the  nine¬ 
teenth  century  to  the  Pope  who  crowned  Pepin  in  the 
eighth;  and  far  beyond  the  time  of  Pepin  the  august 
dynasty  extends,  till  it  is  lost  in  the  twilight  of  fable. 
The  republic  of  Venice  came  next  in  antiquity.  But 
the  republic  of  Venice  was  modern  when  compared 
with  the  Papacy;  and  the  republic  of  Venice  is  gone, 
and  the  Papacy  remains.  The  Papacy  remains,  not 
in  decay,  not  a  mere  antique,  but  full  of  life  and  youth¬ 
ful  vigour.  The  Catholic  Church  is  still  sending  forth 
to  the  farthest  ends  of  the  world  missionaries  as  zeal¬ 
ous  as  those  who  landed  in  Kent  with  Augustin,  and 
still  confronting  hostile  kings  with  the  same  spirit 
with  which  she  confronted  Attila.  The  number  of 
her  children  is  greater  than  in  any  former  age.  Her 
acquisitions  in  the  New  World  have  more  than  com- 


14 


pensated  for  what  she  has  lost  in  the  Old.  Her  spirit¬ 
ual  ascendency  extends  over  the  vast  countries  which 
lie  between  the  plains  of  the  Missouri  and  Cape  Horn, 
countries  which,  a  century  hence,  may  not  improb¬ 
ably  contain  a  population  as  large  as  that  which  now 
inhabits  Europe.  The  members  of  her  communion 
are  certainly  not  fewer  than  a  hundred  and  fifty  mil¬ 
lions  [/.  e.  in  1840] ;  and  it  will  be  difficult  to  show 
that  all  other  Christian  sects  united  amount  to  a  hun¬ 
dred  and  twenty  millions.  Nor  do  we  see  any  sign 
which  indicates  that  the  term  of  her  long  dominion  is 
approaching.  She  saw  the  commencement  of  all  the 
governments  and  of  all  the  ecclesiastical  establishments 
that  now  exist  in  the  world;  and  we  feel  no  assurance 
that  she  is  not  destined  to  see  the  end  of  them  all. 
She  was  great  and  respected  before  the  Saxon  had  set 
foot  on  Britain,  before  the  Frank  had  passed  the 
Rhine,  when  Grecian  eloquence  still  flourished  in 
Antioch,  when  idols  were  still  worshipped  in  the  tem¬ 
ple  of  Mecca.  And  she  may  still  exist  in  undiminished 
vigour  when  some  traveller  from  New  Zealand  shall, 
in  the  midst  of  a  vast  solitude,  take  his  stand  on  a 
broken  arch  of  London  Bridge  to  sketch  the  ruins  of 
St.  Paul’s.''* 

Three  pertinent  quotations  from  authorities  are  all 
that  can  further  reasonably  be  made  in  this  legal  opinion: 
the  first  from  Chancellor  Kent  in  his  famous  Commen¬ 
taries  on  American  Law;  the  second  from  Lord  Acton 
in  his  masterwork  entitled,  The  History  of  Freedom  and 
other  Essays,  London,  1909,  and  the  third,  from  a  deci¬ 
sion  of  the  Supreme  Court  of  the  United  States. 

*  Macaulay’s  Works,  London,  1897,  vol.  vi,  pp.  454-5,  Essay  on  Ranke's 
History  of  the  Popes, 


15 


Chancellor  Kent  in  his  Commentaries  discussed  re¬ 
ligious  liberty,  and,  among  other  things,  said  (vol.  2,  p. 
*34)  as  follows: 

“The  free  exercise  and  enjoyment  of  religious  pro¬ 
fession  and  worship  may  be  considered  as  one  of  the 
absolute  rights  of  individuals,  recognized  in  our 
American  constitutions,  and  secured  to  them  by  law. 
Civil  and  religious  liberty  generally  go  hand  in  hand, 
and  the  suppression  of  either  of  them,  for  any  length 
of  time,  will  terminate  the  existence  of  the  other." 

Lord  Acton  wrote  as  follows  (at  pp.  151-2): 

“Civil  and  religious  liberty  are  so  commonly  asso¬ 
ciated  in  people's  mouths,  and  are  so  rare  in  fact,  that 
their  definition  is  evidently  as  little  understood  as  the 
principle  of  their  connection.  The  point  at  which 
they  unite,  the  common  root  from  which  they  derive 
their  sustenance,  is  the  right  of  self-government.  The 
modern  theory,  which  has  swept  away  every  authority 
except  that  of  the  State,  and  has  made  the  sovereign 
power  irresistible  by  multiplying  those  who  share  it, 
is  the  enemy  of  that  common  freedom  in  which  relig¬ 
ious  liberty  is  included.  It  condemns,  as  a  State  within 
a  State,  every  inner  group  and  community,  class  or 
corporation,  administering  its  own  affairs;  and,  by 
proclaiming  the  abolition  of  privileges,  it  emancipates 
the  subjects  of  every  such  authority  in  order  to  transfer 
them  exclusively  to  its  own.  It  recognizes  liberty  only 
in  the  individual,  because  it  is  only  in  the  individual 
that  liberty  can  be  separated  from  authority,  and  the 
right  of  conditional  obedience  deprived  of  the  security 
of  a  limited  command.  Under  its  sway,  therefore. 


16 


every  man  may  profess  his  own  liberty  more  or  less 
freely;  but  his  religion  is  not  free  to  administer  its 
own  laws.  In  other  words,  religious  profession  is  free, 
but  Church  government  is  controlled.  And  where 
ecclesiastical  authority  is  restricted,  religious  liberty  is 
virtually  denied. 

“For  religious  liberty  is  not  the  negative  right  of 
being  without  any  particular  religion,  just  as  self- 
government  is  not  anarchy.  It  is  the  right  of  religious 
communities  to  the  practice  of  their  own  duties,  the 
enjoyment  of  their  own  constitution,  and  the  protec¬ 
tion  of  the  law,  which  equally  secures  to  all  the  posses¬ 
sion  of  their  own  independence." 

The  leading  decision  of  the  Supreme  Court  of  the 
United  States  upon  the  question  of  church  government 
and  the  necessity  for  its  freedom  from  governmental  inter¬ 
ference  or  control  is  in  the  case  of  Watson  V.  Jones,  13 
Wallace  (U.  S.)  Reports,  at  pp.  679  et  seq.  It  was 
decided  at  the  December,  1871,  term  of  that  court,  and  it 
related  to  a  controversy  which  had  arisen  as  to  the  gov¬ 
ernment,  discipline  and  control  of  a  Presbyterian  Church 
in  the  City  of  Louisville,  State  of  Kentucky.  The  opin¬ 
ion  of  the  court  was  written  by  Mr.  Justice  Miller,  one 
of  the  ablest  and  most  scholarly  justices  who  have  ever 
sat  in  that  great  court.  Whilst  the  issues  involved  did 
not  relate  to  any  constitutional  or  statutory  enactment, 
portions  of  the  reasoning  of  the  court  and  the  principles 
then  enunciated  by  it  would  clearly  apply  to  any  attempt 
by  Congress  or  a  State  Legislature  in  the  United  States 
to  interfere  in  church  government  in  the  manner  that  is 
now  being  done  and  authorized  to  be  done  in  Mexico  by 


17 


its  federal  and  state  legislative  bodies.  Mr.  Justice  Miller 
discussed  the  protection  which  the  law  under  our  just  and 
beneficent  system  of  jurisprudence  throws  around  the 
dedication  of  “property  by  way  of  trust  to  the  purpose 
of  sustaining,  supporting,  and  propagating  definite  religi¬ 
ous  doctrines  or  principles,  provided  that  in  doing  so  they 
violate  no  law  of  morality,  and  give  to  the  instrument  by 
which  their  purpose  is  evidenced,  the  formalities  which 
the  laws  require,’'  and  referred  to  “that  full,  entire,  and 
practical  freedom  for  all  forms  of  religious  belief  and  prac¬ 
tice  which  lies  at  the  foundation  of  our  political  princi¬ 
ples.’’  Speaking  for  the  court,  he  used  the  following 
language  (at  p.  728),  viz.: 

“In  this  country  the  full  and  free  right  to  entertain 
any  religious  belief,  to  practice  any  religious  principle, 
and  to  teach  any  religious  doctrine  which  does  not 
violate  the  laws  of  morality  and  property,  and  which 
does  not  infringe  personal  rights,  is  conceded  to  all. 
The  law  knows  no  heresy,  and  is  committed  to  the 
support  of  no  dogma,  the  establishment  of  no  sect. 
The  right  to  organize  voluntary  religious  associations 
to  assist  in  the  expression  and  dissemination  of  any 
religious  doctrine,  and  to  create  tribunals  for  the  deci¬ 
sion  of  controverted  questions  of  faith  within  the  asso¬ 
ciation,  and  for  the  ecclesiastical  government  of  all  the 
individual  members,  congregations,  and  officers  within 
the  general  association,  is  unquestioned.  All  who  unite 
themselves  to  such  a  body  do  so  with  an  implied  con¬ 
sent  to  this  government,  and  are  bound  to  submit  to  it. 
But  it  would  be  a  vain  consent  and  would  lead  to  the 
total  subversion  of  such  religious  bodies,  if  any  one  ag¬ 
grieved  by  one  of  their  decisions  could  appeal  to  the 


18 


secular  courts  and  have  them  reversed.  It  is  of  the 
essence  of  these  religious  unions,  and  of  their  right  to 
establish  tribunals  for  the  decision  of  questions  arising 
among  themselves,  that  those  decisions  should  be  bind¬ 
ing  in  all  cases  of  ecclesiastical  cognizance,  subject  only 
to  such  appeals  as  the  organism  itself  provides  for. 

“Nor  do  we  see  that  justice  would  be  likely  to  be 
promoted  by  submitting  those  decisions  to  review  in 
the  ordinary  judicial  tribunals.  .  .  .  It  is  not  to  be 
supposed  that  the  judges  of  the  civil  courts  can  be 
as  competent  in  the  ecclesiastical  law  and  religious 
faith  of  all  these  bodies  as  the  ablest  men  in  each  are 
in  reference  to  their  own.  It  would  therefore  be  an 
appeal  from  the  more  learned  tribunal  in  the  law  which 
should  decide  the  case,  to  one  which  is  less  so." 

The  opinion  then  reviews  the  authorities  in  other 
courts.  Among  these,  Mr.  Justice  Miller  cited  the  earlier 
case  of  Chase  et  al,  V.  Cheney  (1871),  58  Illinois  Re¬ 
ports,  pp.  509,  536  et  seq.,  in  which  the  highest  judicial 
tribunal  in  the  State  of  Illinois,  among  other  holdings, 
enunciated  the  following: 

“Shall  we  maintain  the  boundary  between  Church 
and  State,  and  let  each  revolve  in  its  respective  sphere, 
the  one  undisturbed  by  the  other?  .  .  .  Our  consti¬ 
tution  provides,  that  ‘the  free  exercise  and  enjoyment 
of  religious  profession  and  worship,  without  discrimi¬ 
nation,  shall  forever  be  guaranteed.’  .  .  .  Religious 
worship  consists  in  the  performance  of  all  the  exter¬ 
nal  acts,  and  the  observance  of  all  ordinances  and  cere¬ 
monies,  which  are  engaged  in  with  the  sole  and  avowed 
object  of  honoring  God.  The  constitution  intended  to 
guarantee,  from  all  interference  by  the  State,  not  only 


19 


each  man’s  religious  faith,  but  his  membership  in  the 
church,  and  the  rites  and  discipline  which  might  be 
adopted.  The  only  exception  to  uncontrolled  liberty 
is,  that  acts  of  licentiousness  shall  not  be  excused,  and 
practices  inconsistent  with  the  peace  and  safety  of  the 
State,  shall  not  be  justified.  Freedom  of  religious  pro¬ 
fession  and  worship  cannot  be  maintained,  if  the  civil 
courts  trench  upon  the  domain  of  the  church,  construe 
its  canons  and  rules,  dictate  its  discipline,  and  regulate 
its  trials.  .  .  .  It  is  as  much  a  delusion  to  confer  relig¬ 
ious  liberty  without  the  right  to  make  and  enforce 
rules  and  canons,  as  to  create  government  with  no 
power  to  punish  offenders.  .  .  .  The  civil  power  may 
contribute  to  the  protection,  but  cannot  interfere  to 
destroy  or  fritter  away.” 

Consult  also  Shepard  et  al.  V.  Barkley,  Moderator, 
etc.  (1918),  247  United  States  Reports,  pp.  1  et  seq., 
and  State  ex  rel.  Hynes  Y.  Catholic  Church  (1914),  183 
Missouri  Appeal  Reports,  pp.  190  et  seq.,  which  are 
typical  of  many  other  decisions  by  the  highest  courts  of 
numerous  States  of  the  United  States. 

We  may  now  turn  to  the  Mexican  Constitution  of 
1917  and  the  Presidential  Decree  of  1926  in  order  to 
apply  to  them  the  reasoning  of  Chancellor  Kent,  Lord 
Acton  and  Mr.  Justice  Miller  and  by  that  test  determine 
whether  they  are  or  are  not  in  violation  of  elementary 
principles  of  liberty  and  whether  the  Roman  Catholic 
Church  could  submit  to  them  without  certainty  of  ulti¬ 
mate  “total  subversion”  in  Mexico. 

The  Constitution  of  1917  provides,  as  shown  in 
detail  below  (p.  30),  not  only  for  the  confiscation  of 


20 


the  property  of  the  Roman  Catholic  Church  as  well  as 
the  property  of  all  other  churches,  but  also  that  they 
"shall  in  no  case  have  legal  capacity  to  acquire,  hold,  or 
administer  real  property  or  loans  made  on  such  real  prop¬ 
erty"  (Article  27,  subdiv.  II).  It  declares  (Article  5) 
that  "the  States  shall  not  permit"  any  abridgement  of 
personal  liberty  "whether  by  reason  of  labor,  education 
or  religious  vows,”^  and  "does  not  permit  the  establish¬ 
ment  of  monastic  orders,  of  whatever  denomination,  or 
for  whatever  purpose  contemplated,"  that  is  to  say,  not 
even  for  educating  the  poor,  caring  for  orphans  or  the 
blind  or  insane,  or  ministering  to  the  sick  and  suffering  in 
hospitals.  Article  24  further  provides  that  "every  relig¬ 
ious  act  of  public  worship  shall  be  performed  strictly 
within  the  places  of  public  worship,  which  shall  be  at  all 
times  under  governmental  supervision/'  Then  follows 
Article  130,  providing  inter  alia  as  follows: 

"Article  130.  The  Federal  authorities  [that  is,  of 
course,  Mexican  government  officials  and  politicians] 
shall  have  power  to  exercise  in  matters  of  religious 
v/orship  and  outward  ecclesiastical  forms  such  inter¬ 
vention  as  by  law  authorized.  All  other  officials  shall 
act  as  auxiliaries  to  the  Federal  authorities.  .  .  . 

"Ministers  of  religious  creeds  shall  be  considered  as 
persons  exercising  a  profession,  and  shall  be  directly 
subject  to  the  laws  enacted  on  the  matter. 

"The  State  legislatures  shall  have  the  exclusive 
power  of  determining  the  maximum  number  of  minis¬ 
ters  of  religious  creeds,  according  to  the  needs  of  each 
locality.  Only  a  Mexican  by  birth  may  be  a  minister 
of  any  religious  creed  in  Mexico. 

*  Italics  here  and  elsewhere  are  not  in  original. 

21 


“No  ministers  of  religious  creeds  shall,  either  in 
public  or  private  meetings,  or  in  acts  of  worship  or 
religious  propaganda,  criticize  the  fundamental  laws 
of  the  country,  the  authorities  in  particular  or  the 
Government  in  general;  they  shall  have  no  vote,  nor 
be  eligible  to  office,  nor  shall  they  be  entitled  to  as¬ 
semble  for  political  purposes. 

“Before  dedicating  new  temples  of  worship  for  pub¬ 
lic  use,  permission  shall  be  obtained  from  the  Depart¬ 
ment  of  the  Interior  (Gobernacion) ;  the  opinion  of 
the  Governor  of  the  respective  State  shall  be  previ¬ 
ously  heard  on  the  subject.  Every  place  of  worship 
shall  have  a  person  charged  with  its  care  and  mainte¬ 
nance,  who  shall  be  legally  responsible  for  the  faithful 
performance  of  the  laws  on  religious  observances  with¬ 
in  the  said  place  of  worship,  and  for  all  the  objects 
used  for  purposes  of  worship.  .  .  . 

“Under  no  conditions  shall  studies  carried  on  in  in¬ 
stitutions  devoted  to  the  professional  training  of  min¬ 
isters  of  religious  creeds  be  given  credit  or  granted  any 
other  dispensation  of  privilege  which  shall  have  for 
its  purpose  the  accrediting  of  the  said  studies  in  official 
institutions.  Any  authority  violating  this  provision 
shall  be  punished  criminally,  and  all  such  dispensation 
of  privilege  be  null  and  void,  and  shall  invalidate 
wholly  and  entirely  the  professional  degree  toward 
the  obtaining  of  which  the  infraction  of  this  provision 
may  in  any  way  have  contributed. 

“No  periodical  publication  which  either  by  reason 
of  its  program,  its  title  or  merely  by  its  general  tend¬ 
encies,  is  of  a  religious  character,  shall  comment  upon 
any  political  affairs  of  the  nation,  nor  publish  any 


22 


information  regarding  the  acts  of  the  authorities  of 
the  country  or  of  private  individuals,  in  so  far  as  the 
latter  have  to  do  with  public  affairs. 

“Every  kind  of  political  association  whose  name 
shall  bear  any  word  or  any  indication  relating  to  any 
religious  belief  is  hereby  strictly  forbidden.  No  as¬ 
semblies  of  any  political  character  shall  be  held  within 
places  of  public  worship. 

“No  minister  of  any  religious  creed  may  inherit, 
either  on  his  own  behalf  or  by  means  of  a  trustee  or 
otherwise,  any  real  property  occupied  by  any  associa¬ 
tion  of  religious  propaganda  or  religious  or  charitable 
purposes.  Ministers  of  religious  creeds  are  incapable 
legally  of  inheriting  by  will  from  ministers  of  the  same 
religious  creed  or  from  any  private  individual  to  whom 
they  are  not  related  by  blood  within  the  fourth  degree. 

“All  real  and  personal  property  pertaining  to  the 
clergy  or  to  religious  institutions  shall  be  governed, 
in  so  far  as  their  acquisition  by  private  parties  is  con¬ 
cerned,  in  conformity  with  Article  27  of  this  Constitu¬ 
tion  [that  is  to  say,  confiscated]. 

“No  trial  by  jury  shall  ever  be  granted  for  the  in¬ 
fraction  of  any  of  the  preceding  provisions.” 

The  Presidential  Decree  of  June  14,  1926,  drastically 
enforces  the  above  quoted  provisions  of  the  Constitution 
and  the  anti-religious  and  bolshevistic  spirit  that  animated 
and  brought  about  their  adoption.  The  following  are 
quoted  from  a  translation  which  counsel  has  been  in¬ 
structed  is  substantially  correct,  viz.: 

“Law  amending  the  penal  code  concerning  crimes 
against  the  statute  laws  of  the  Federal  district  and  terri- 


23 


tories,  and  crimes  against  the  Federation  throughout 
the  Republic: 

"Concerning  crimes  and  offenses  in  matters  of  relig¬ 
ious  worship  and  outward  conduct — 

"Article  1.  To  exercise  the  ministry  of  any  cult 
within  the  territory  of  the  Mexican  Republic,  it  is 
required  to  be  Mexican  by  birth. 

"Violators  of  this  provision  shall  be  punished  sum¬ 
marily  by  a  fine  not  to  exceed  5,000  pesos,  or  in  lieu 
thereof,  by  arrest  of  not  to  exceed  fifteen  days.  More¬ 
over,  the  Federal  Executive,  at  his  discretion,  shall  have 
power  to  deport,  without  further  process,  any  foreign 
priest  or  minister  violating  this  law,  using  for  such 
purpose  the  authority  which  Article  33  of  the  Con¬ 
stitution  grants  him. 

"Article  4.  No  religious  corporation  or  minister  of 
any  cult  shall  be  permitted  to  establish  or  direct 
schools  of  primary  instruction. 

"Those  responsible  for  the  infraction  of  this  pro¬ 
vision  shall  be  punished  with  a  fine  not  to  exceed  500 
pesos,  or  in  lieu  thereof,  with  arrest  of  not  more  than 
fifteen  days,  and  in  addition  the  authorities  shall  order 
the  immediate  closing  of  the  teaching  establishment. 

"Article  6.  The  State  cannot  permit  that  there  be  car¬ 
ried  into  effect  any  contract,  pact,  or  agreement  that 
may  have  as  an  object  the  diminution,  loss  or  irrevo¬ 
cable  sacrifice  of  the  liberty  of  man,  whether  it  be 
for  the  reason  of  work,  education  or  religious  vow; 
the  law,  in  consequence,  does  not  permit  the  establish¬ 
ment  of  monastic  orders,  whatever  may  be  the  denom- 


24 


ination  or  the  object  for  which  they  may  seek  to  be 
established. 

“For  the  purposes  of  this  article,  monastic  orders 
are  those  religious  societies  whose  individuals  live 
under  certain  rules  peculiar  to  them,  by  means  of 
promises  or  vows,  temporal  or  perpetual,  and  who  sub¬ 
ject  themselves  to  one  or  more  superiors,  even  though 
all  the  individuals  of  the  order  may  have  their  living 
places  separate. 

“Monastic  orders  or  established  convents  shall  be 
dissolved  by  the  authorities,  after  having  made  a  rec¬ 
ord  of  the  identification  and  affiliation  of  the-  ex- 
cloistered  persons. 

“If  it  is  proved  that  ex-cloistered  persons  return  to 
live  a  community  life  after  the  community  has  been 
dissolved,  they  shall  be  punished  with  a  penalty  of 
from  one  to  two  years  in  prison.  In  such  case,  the 
superiors,  priors,  prelates,  directors  or  persons  who 
may  have  a  hierarchical  standing  in  the  organization  or 
direction  of  the  cloister  shall  be  punished  with  a  pen¬ 
alty  of  six  years’  imprisonment. 

“In  each  case,  women  shall  suffer  two- thirds  of  the 
penalty. 

“Article  7.  Persons  who  induce  or  lead  a  minor  to 
renounce  his  liberty  through  a  religious  vow  shall  be 
punished  with  ‘major’*  arrest  and  fine  of  the  second 
class,  even  though  there  be  bonds  of  relationship  be¬ 
tween  them. 


*  “By  a  ‘major’  arrest  is  meant  action  involving  a  sentence  of  more  than 
fifteen  days  in  a  penitentiary.  By  a  ‘minor’  arrest  is  meant  action  involving 
a  sentence  of  not  to  exceed  fifteen  days  in  jail.’’ 


25 


"If  the  induced  person  is  of  age,  the  penalty  shall 
be  ‘minor’  arrest  and  a  fine  of  first  class. 

"Article  8.  Any  individual  who,  in  the  exercise  of 
the  ministry  or  priesthood  of  any  religious  cult  what¬ 
soever,  publicly  incites,  by  means  of  written  declara¬ 
tions,  or  speeches  or  sermons,  his  readers  or  audience 
to  disavowal  of  the  political  institutions  or  to  disobedi¬ 
ence  of  the  laws,  or  of  the  authorities  and  their  com¬ 
mands,  shall  be  punished  with  a  penalty  of  six  years 
in  prison  and  a  fine  of  the  second  class. 

"Article  10.  Ministers  of  religion,  whether  in  public 
or  private  meetings,  or  in  acts  of  worship  or  religious 
propaganda,  shall  not  criticize  the  fundamental  laws 
of  the  country  or  the  authorities  of  the  government, 
either  in  particular  or  in  general. 

"Transgressors  shall  be  punished  with  a  penalty  of 
from  one  to  five  years  in  prison. 

"Article  13.  Religious  periodical  publications  or  those 
simply  with  marked  tendencies  in  favor  of  any  specific 
religious  belief,  whether  by  their  program  or  title,  shall 
not  comment  on  national  political  subjects  nor  publish 
information  regarding  the  acts  of  the  authorities  of  the 
country  or  of  private  persons,  which  may  have  a  direct 
relation  to  the  functioning  of  public  institutions. 

"The  director  of  the  publication,  in  case  of  infrac¬ 
tion  of  this  provision,  shall  be  punished  with  the  pen¬ 
alty  of  ‘major’  arrest  and  a  fine  of  the  second  class. 

"Article  15.  The  formation  of  any  class  of  political 
group  whose  title  may  contain  any  word  or  indication 
relating  it  with  any  religious  creed  is  strictly  prohibited. 

"If  this  provision  is  violated,  the  persons  who  com- 


26 


pose  the  board  of  directors,  or  the  persons  at  the  head 
of  the  group,  shall  be  punished  with  ‘major’  arrest  and 
a  fine  of  the  second  class. 

“The  authorities  shall  order  in  each  case  that  the 
societies  having  the  character  indicated  in  the  first  part 
of  this  article  be  broken  up  immediately. 

“Article  17.  All  religious  acts  of  public  worship 
must  be  celebrated  absolutely  inside  the  churches, 
which  shall  always  be  under  the  supervision  of  the 
authorities. 

“The  celebration  of  religious  acts  of  public  worship 
outside  the  churches  carries  with  it  penal  responsibility 
for  the  organizers  and  the  participating  ministers,  who 
shall  be  punished  with  ‘major’  arrest  and  a  fine  of  the 
second  class. 

“Article  18.  Nor  shall  religious  ministers  or  individ¬ 
uals  of  either  sex  belonging  to  such  religion,  be  allowed 
to  wear,  outside  the  churches,  special  garments  or  in¬ 
signia  that  indicate  their  religion,  under  the  summary 
penalty  of  a  fine  of  500  pesos,  or  in  lieu  thereof,  arrest 
of  not  to  exceed  fifteen  days. 

“In  case  of  a  second  olfense  there  shall  be  imposed 
the  penalty  of  ‘major’  arrest  and  a  fine  of  the  second 
class. 

“Article  21.  The  religious  associations  known  as 
churches,  whatever  may  be  their  creed,  shall  not  have, 
in  any  case,  capacity  for  acquiring,  possessing  or  ad¬ 
ministering  real  estate,  or  real  estate  securities;  those 
who  actually  do  have  such  real  estate,  either  in  their 
own  behalf  or  through  an  intermediary  agent,  shall 
turn  it  over  to  the  Government  of  the  Nation,  the  right 


27 


being  granted  to  anyone  to  denounce  the  property  that 
may  be  found  in  such  case. 

“Persons  who  conceal  the  goods  and  securities  to 
which  this  article  refers  shall  be  punished  with  a  pen¬ 
alty  of  from  one  to  two  years’  imprisonment.  Those 
who  act  as  intermediary  agents  shall  be  punished  with 
the  same  penalty. 

“Article  22.  The  churches  destined  for  public  worship 
are  the  property  of  the  Nation,  represented  by  the  Fed¬ 
eral  Government,  which  shall  determine  those  churches 
which  shall  continue  destined  for  the  purpose  of  wor¬ 
ship. 

“Bishops’  residences,  parish  houses,  seminaries, 
asylums  or  colleges  of  religious  associations,  convents, 
or  any  other  building  that  may  have  been  constructed 
or  destined  for  the  administration,  propagation  or 
teaching  of  any  religious  belief,  shall  immediately  pass, 
under  the  law  {de  plena  detecho)  to  the  full  owner¬ 
ship  of  the  nation,  to  be  destined  exclusively  for  the 
public  use  of  the  Federation  or  of  the  States  in  their 
respective  jurisdictions.’’ 

It  surely  must  be  manifest  to  all  candid,  fair-minded 
and  tolerant  men  of  whatever  creed  that  the  above  quoted 
provisions  from  the  Mexican  Constitution  and  Presiden¬ 
tial  Decree  alike  would  inevitably  and  utterly  destroy  the 
independence  of  the  Roman  Catholic  Church  and  its  min¬ 
isters  in  Mexico;  that  they  would  totally  subvert  the 
necessary  and  indispensable  governance  and  discipline  of 
the  Church  in  Mexico,  and  that  although  the  Catholic 
Church  has  not  actively  resisted  by  force  the  tyrannical 
confiscation  of  her  property,  as  in  the  past,  nevertheless 


28 


submission  to  the  oppressive,  tyrannical  and  destructive 
measures  by  which  the  Mexican  Government  is  now  seek¬ 
ing  to  undermine  and  subvert  the  Church  in  Mexico 
would  be  wrong  in  principle  and  prejudicial  in  the  long 
run  to  the  best  interests  of  the  Mexican  Catholics  them¬ 
selves.  Hence,  the  Roman  Catholic  Church  cannot  sub¬ 
mit  and  permit  its  temples,  holy  offices,  liturgy  and  cere¬ 
monies  to  be  placed  under  the  control  and  supervision  of 
socialistic  and  bolshevistic  political  officials  who  may  be 
intent  for  their  own  ends  either  upon  establishing  a 
Mexican  National  Church  to  be  controlled  by  revolution¬ 
ary  politicians,  or  upon  destroying  all  churches  of  what¬ 
ever  denomination  as  has  been  ruthlessly  attempted  in 
Soviet  Russia. 

Paraphrasing  the  noble  words  of  our  Declaration  of 
Independence,  the  Roman  Catholic  Church  is  advised 
that,  whilst,  of  course  and  preeminently,  first  “appealing 
to  the  supreme  judge  of  the  world  for  the  rectitude  of 
[her]  intentions,”  she  now  appeal  to  the  advised  opinion 
of  mankind  throughout  the  world  and  in  the  forum  of 
fair  and  honest  public  opinion  in  every  country,  to  the 
end  that  all  may  appreciate  that  her  policy  in  Mexico  is 
proper,  wise  and  just,  and  that  she  would  have  been 
untrue  to  herself  and  her  traditions  if  she  had  submitted 
in  our  age  to  the  arbitrary,  brutal  and  subversive  perse¬ 
cution  now  being  enforced  in  Mexico,  which  is  so  plainly 
incompatible  with  the  crudest  notions  of  religious  or  per¬ 
sonal  liberty. 

3. 

CONFISCATION  OF  CHURCH  PROPERTY. 

In  considering  the  confiscation  of  the  property  of  the 
Roman  Catholic  Church  by  the  Mexican  Constitution 


29 


of  1917,  it  should  be  borne  in  mind  that  it  supplements 
the  confiscations  made  under  the  Constitution  of  1857 
and  other  confiscatory  measures  both  by  the  Mexican 
Republic  and  the  Government  of  Spain  before  the  inde¬ 
pendence  of  Mexico.  Some  of  the  supplemental  provi¬ 
sions  contained  in  the  Constitution  of  1917  should  speak 
for  themselves.  They  are  as  follows: 

“Art.  27.  .  .  .  Private  property  shall  not  be  expro¬ 
priated  except  for  reasons  of  public  utility  and  by 
means  of  indemnification.  .  .  . 

“II.  The  religious  institutions  known  as  churches, 
irrespective  of  creed,  shall  in  no  case  have  legal  capacity 
to  acquire,  hold  or  administer  real  property  or  loans 
made  on  such  real  property;  all  such  real  property  or 
loans  as  may  be  at  present  held  by  the  said  religious  in¬ 
stitutions,  either  on  their  own  behalf  or  through  third 
parties,  shall  vest  in  the  Nation,  and  any  one  shall  have 
the  right  to  denounce  property  so  held.  Presumptive 
proof  shall  be  sufficient  to  declare  the  denunciation 
well-founded.  Places  of  public  worship  are  the  prop¬ 
erty  of  the  Nation,  as  represented  by  the  Federal  Gov¬ 
ernment,  which  shall  determine  which  of  them  may 
continue  to  be  devoted  to  their  present  purposes.  Epis¬ 
copal  residences,  rectories,  seminaries,  orphan  asylums 
or  collegiate  establishments  of  religious  institutions, 
convents  or  any  other  buildings  built  or  designed  for 
the  administration,  propaganda,  or  teaching  of  the 
tenets  of  any  religious  creed  shall  forthwith  vest,  as  of 
full  right,  directly  in  the  Nation,  to  be  used  exclusively 
for  the  public  services  of  the  Federation  or  of  the  States, 
within  their  respective  jurisdictions.  All  places  of  pub- 


30 


lie  worship  which  shall  later  be  erected  shall  be  the 
property  of  the  Nation. 

‘dlL  Public  and  private  charitable  institutions  for 
the  sick  and  needy,  for  scientific  research,  or  for  the  dif¬ 
fusion  of  knowledge,  mutual  aid  societies  or  organiza¬ 
tions  formed  for  any  other  lawful  purpose  shall  in  no 
case  acquire,  hold  or  administer  loans  made  on  real 
property,  unless  the  mortgage  terms  do  not  exceed  ten 
years.  In  no  case  shall  institutions  of  this  character 
be  under  the  patronage,  direction,  administration, 
charge  or  supervision  of  religious  corporations  or  in¬ 
stitutions,  nor  of  ministers  of  any  religious  creed  or 
of  their  dependents,  even  though  either  the  former  or 
the  latter  shall  not  be  in  active  service.'' 

It  follows  that,  although  the  Mexican  Constitution 
expressly  provides  that  '‘private  property  shall  not  be 
expropriated  except  for  reasons  of  public  utility  and  by 
means  of  indemnification,"  nevertheless  Article  27  dis¬ 
criminates  against  religious  institutions  by  providing  for 
such  expropriation  of  their  property  without  any  in¬ 
demnity  or  compensation  whatever. 

Manifestly,  there  should  be  no  doubt  that,  under  ele¬ 
mentary  American  principles  of  liberty,  the  expropriation 
or  confiscation  of  church  property  without  any  indemnifi¬ 
cation  or  compensation  whatever,  as  is  provided  in  Arti¬ 
cle  27  of  the  Mexican  Constitution  of  1917,  above 
partially  quoted,  would  be  declared  unconstitutional  and 
void  and  strongly  condemned  by  any  American  court  as 
politically  unjust,  whether  attempted  by  the  Congress  of 
the  United  States  or  by  the  Legislature  of  any  State  in 
the  Union.  This  view  was  voiced  one  hundred  years 


31 


ago  by  Mr.  Justice  Story  in  the  leading  case  of  Terrett  V. 
Taylor  (1815),  9  Cranch’s  Reports,  pp.  43,  49,  52, 
when,  speaking  for  the  Supreme  Court  of  the  United 
States,  he  used  language  quite  applicable  to  the  claim  now 
advanced  on  behalf  of  the  Government  of  Mexico  that  it 
is  entitled  as  of  governmental  right  to  confiscate  church 
property  if  it  sees  fit  to  do  so  and  award  to  its  owners 
no  pay  or  compensation  or  indemnity  whatever: 

“Be,  however,  the  general  authority  of  the  legisla¬ 
ture  as  to  the  subject  of  religion,  as  it  may,  it  will 
require  other  arguments  to  establish  the  position  that, 
at  the  revolution,  all  the  public  property  acquired 
by  the  Episcopal  churches,  under  the  sanction  of  the 
laws,  became  the  property  of  the  state.  Had  the  prop¬ 
erty  thus  acquired  been  originally  granted  by  the  state 
or  the  king,  there  might  have  been  some  color  (and  it 
would  have  been  but  a  color)  for  such  an  extraor¬ 
dinary  pretension.  But  the  property  was,  in  fact  and 
in  law,  generally  purchased  by  the  parishioners,  or  ac¬ 
quired  by  the  benefactions  of  pious  donors.  The  title 
thereto  was  indefeasibly  vested  in  the  churches,  or 
rather  in  their  legal  agents.  It  was  not  in  the  power 
of  the  crown  to  seize  or  assume  it;  nor  of  the  parlia¬ 
ment  itself  to  destroy  the  grants,  unless  by  the  exercise 
of  a  power  the  most  arbitrary,  oppressive  and  unjust, 
and  endured  only  because  it  could  not  be  resisted. 
.  .  .  Nor  are  we  able  to  perceive  any  sound  reason 

why  the  church  lands  escheated  or  devolved  upon  the 
state  by  the  revolution  any  more  than  the  property 
of  any  other  corporation  created  by  the  royal  bounty 
or  established  by  the  legislature.  .  . 


32 


Then,  answering  the  argument  that  the  legislative 
power  could,  by  repealing  a  statute  incorporating  a 
church  (in  that  case  a  Protestant  Episcopal  Church), 
escheat  all  its  property  to  the  State,  Mr.  Justice  Story 
used  the  following  language  (at  p.  52): 

“But  that  the  legislature  can  repeal  statutes  creating 
private  [religious]  corporations,  or  confirming  to  them 
property  already  acquired  under  the  faith  of  previous 
laws,  and  by  such  repeal  can  vest  the  property  of  such 
corporations  exclusively  in  the  state,  or  dispose  of  the 
same  to  such  purposes  as  they  may  please,  without  the 
consent  or  default  of  the  corporators,  we  are  not  pre¬ 
pared  to  admit;  and  we  think  ourselves  standing  upon 
the  principles  of  natural  justice,  upon  the  fundamental 
laws  of  every  free  government,  upon  the  spirit  and  the 
letter  of  the  constitution  of  the  United  States,  and 
upon  the  decisions  of  most  respectable  judicial  tri¬ 
bunals,  in  resisting  such  a  doctrine.” 

It  is  deemed  unnecessary  to  cite  additional  legal 
authorities  to  sustain  the  proposition,  happily  now  ele¬ 
mentary  in  American  constitutional  law,  that  the  prop¬ 
erty  of  no  church  of  whatever  denomination  can  be  taken 
by  the  Nation  or  any  State  without  just  compensation  or 
indemnification.  Just  compensation  is  guaranteed  to  all 
religious  corporations  by  the  Fifth  Article  of  Amend¬ 
ment  to  the  Constitution  of  the  United  States,  and  it  is 
also  guaranteed  to  all  religious  corporations  by  the  Four¬ 
teenth  Article  of  Amendment,  which  is  in  express  re¬ 
straint  of  confiscatory  action  by  any  State. 


33 


4. 

FREEDOM  OF  EDUCATION. 

The  importance  of  religious  liberty  in  connection 
with  education  cannot  be  exaggerated.  To  Roman  Cath¬ 
olics  it  is  deemed  essential  and  inseparable.  For  many 
centuries  the  education  of  children  has  been  one  of  the 
principal  functions  and  activities  of  the  Roman  Catholic 
Church,  and  well-informed,  though  hostile,  critics  have 
conceded  to  the  Church  an  immeasurable  debt  for  the 
preservation  of  learning,  of  the  literature  of  the  classics, 
of  political  and  other  philosophies,  through  the  eclipse  of 
the  Dark  Ages.  To  assert  that  the  Church  is  now  or 
ever  was  opposed  to  the  education  of  the  masses,  or  has 
left  undone  what  it  should  have  done  to  enlighten  man¬ 
kind,  is  to  pervert  all  the  teachings  of  history.  It  is 
true  that  in  temporal  matters  and  in  the  interpretation  of 
scientific  theories,  certain  ecclesiastics  and  officials  may 
have  erred,  for  they  followed  the  then  dominant  and 
almost  universal  current  of  human  ignorance  and  they 
erred  alike  with  the  best  and  most  enlightened  among 
other  religious  leaders.  If  during  the  past  century  in 
Mexico  fair  play  and  religious  liberty,  as  we  Americans 
now  conceive  fair  play  to  all  creeds  and  to  all  churches, 
had  been  granted  to  the  Roman  Catholic  Church,  it  is 
highly  probable  and  reasonably  just  to  assume  that  the 
Mexican  people  of  to-day  would  have  been  as  well- 
educated  as  any  other  people  and  certainly  as  well- 
educated  as  the  rural  population  in  the  United  States  was 
seventy  years  ago  or  is  to-day,  particularly  in  the 
Southern  and  Southwestern  States  that  are  predomi¬ 
nantly  Protestant,  except  Louisiana  and  perhaps  two  or 
three  other  States  bordering  on  the  frontier  of  Mexico 
and  at  one  time  part  of  that  Republic.  Several  Protestant 

34 


critics  have  indicted  the  Roman  Catholic  Church  as  re¬ 
sponsible  for  the  fact  that  at  present  fully  four-fifths 
of  the  Mexican  population  are  illiterate,  but  they  fail 
to  state  or  recognize  that  the  property  of  the  Church 
has  been  generation  after  generation  confiscated  by  the 
State  and  that  it  has  thus  been  deprived  of  the 
funds  necessary  to  maintain  free  schools  such  as  the 
Church  now  maintains  for  more  than  2,000,000  children 
in  the  United  States.  They  likewise  fail  to  state  that  the 
finest  and  most  extensive  educational  foundation  exist¬ 
ing  on  this  continent  during  the  eighteenth  century  was 
utterly  disrupted  by  the  expulsion  of  the  Jesuits  from 
Mexico  by  Spain  in  1767. 

It  is  no  exaggeration  to  say  that  whatever  education 
and  culture  exist  to-day  in  Mexico  are  due  to  teachers 
affiliated  with  the  Roman  Catholic  Church,  and  that  were 
it  not  for  the  repeated  confiscations  of  church  property 
Mexico  would  to-day  be  more  fully  provided  with  pri¬ 
mary  and  secondary  schools  as  well  as  high  schools  and 
colleges  than  are  at  present  to  be  found  in  many  of  the 
States  of  the  American  Union.  Mexico  would,  it  is  con¬ 
fidently  affirmed,  then  be  the  literary  and  scientific  light 
of  Central  and  South  America  as  Catholic  France  was 
indisputably  the  literary  and  scientific  light  of  Europe  in 
the  seventeenth  and  eighteenth  centuries  in  comparison 
with  Protestant  England  and  Protestant  Prussia.  Let  us 
be  fair  and  just,  if  fairness  and  justice  be  indeed  possible 
in  religious  controversies  or  amid  religious  prejudices.  In 
fair  play  let  us  recall  how  meagre  were  the  educational 
facilities  in  the  United  States  one  hundred  years  ago,  how 
high  was  then  our  percentage  of  illiteracy,  how  recent 
the  introduction  of  free  public  schools  supported  by  taxa- 


35 


tion,  how  inadequate  our  public  school  system  still  is  in 
many  States,  and  finally  how  shamefully  the  negroes, 
generally  as  intelligent  and  civilized  as  the  Mexican 
Indians,  have  been  treated  in  Protestant  States.  A  quo¬ 
tation  from  a  recognized  authority  may  be  instructive 
(History  of  Education  in  the  United  States,  by  E.  G. 
Dexter,  New  York,  1906,  p.  454) : 

'‘The  history  of  negro  education  in  the  United 
States  goes  back  no  further  than  the  Civil  War.  Pre¬ 
vious  to  that  time  in  the  South  the  teaching  of  the 
blacks,  whether  they  be  slaves  or  free,  was  forbidden 
by  law,  and  in  some  states  made  an  offense  for  which 
the  pupil  might  be  fined  and  whipped,  at  the  discre¬ 
tion  of  the  court,  and  the  teacher  be  fined  or  impris¬ 
oned.  In  the  North  no  such  penalty  was  imposed,  but 
since  no  special  schools  were  provided  for  the  blacks, 
and  public  sentiment  opposed  their  admission  to  other 
schools,  they  were  practically  without  educational  ad¬ 
vantages.  It  is  true  that  both  in  the  South  and  the 
North  negroes  occasionally  were  taught  the  rudiments 
of  learning  in  the  so-called  ‘clandestine  schools';  still 
such  instances  were  rare,  and  cannot  be  said  to  qualify 
the  general  statement  that  in  ante  helium  days  the 
negroes  were  uneducated." 

Attention  has  been  called  above  to  the  sweeping  con¬ 
fiscations  of  church  property  under  the  Mexican  Consti¬ 
tutions  of  1857  and  1917,  but  these  were  but  two  in¬ 
stances  of  many  to  be  found  in  the  history  of  both  Spain 
and  Mexico  since  the  Conquest  of  the  Aztecs.  To  hold 
the  Roman  Catholic  Church  responsible  for  not  estab¬ 
lishing  more  schools  when  its  property  and  funds  were 
being  constantly  confiscated  or  menaced  with  confiscation 


36 


and  when  wholly  inadequate  provision  was  being  made 
by  successive  governments,  is  the  extreme  of  unreason¬ 
ableness  and  unfairness. 

It  is  impracticable  to  discuss  at  length  the  funda¬ 
mental  principles  and  constitutional  provisions  which 
guarantee  to  all  living  in  the  United  States  true  liberty 
in  education  and  which  prohibit  the  National  Govern¬ 
ment  as  well  as  every  State  from  denying  to  any  parents 
of  any  class  or  creed  the  exercise  of  liberty  in  the  edu¬ 
cation  of  their  children.  Three  decisions  of  the  Supreme 
Court  of  the  United  States  will,  however,  be  cited:  first, 
in  the  case  of  Meyer  v.  State  of  Nebraska  (1923),  262 
United  States  Reports,  pp.  390  et  seq.,  involving  the 
right  to  teach  German  in  a  parochial  school  of  the  Prot¬ 
estant  Zion  Evangelical  Lutheran  Church;  secondly,  in 
the  cases  of  Bartels  v.  State  of  Iowa,  Bohning  v.  State  of 
Ohio  and  Pohl  v.  State  of  Ohio  (1923),  262  United 
States  Reports,  pp.  404  et  seq,,  involving  the  same  right 
in  certain  Protestant  schools  in  the  State  of  Ohio,  and, 
thirdly.  Pierce,  Governor  of  Oregon,  et  al.  V.  The  Society 
of  the  Sisters  of  the  Holy  Names  of  Jesus  and  Mary, 
and  V.  Hill  Military  Academy  (decided  June  1,  1925), 
268  United  States  Reports,  pp.  510  et  seq,,  which 
latter  cases  involved  the  constitutionality  of  a  state 
statute  compelling  all  parents  in  the  State  of  Oregon,  un¬ 
der  penalty  of  punishment  as  for  a  crime,  to  send  their 
children  between  eight  and  sixteen  years  of  age  to  a 
secular  public  school  maintained  by  the  State  by  means 
of  general  taxation. 

In  the  first  case,  Meyer  V.  Nebraska,  Mr.  Justice  Mc- 
Reynolds  delivered  the  opinion  of  the  court.  It  contains 
a  remarkably  interesting  and  instructive  statement  of  the 


37 


views  of  the  court  in  its  interpretation  of  the  broad 
scope  and  efficacy  of  the  guaranty  of  liberty  contained  in 
all  American  constitutions — whether  national  or  state. 
Only  two  paragraphs  will  here  be  quoted,  although  the 
entire  opinion  should  be  studied  and  pondered  for  its 
admirable  breadth  of  view,  scholarship  and  eloquence 
(pp.  399-400): 

“While  this  Court  has  not  attempted  to  define  with 
exactness  the  liberty  thus  guaranteed,  the  term  has  re¬ 
ceived  much  consideration  and  some  of  the  included 
things  have  been  definitely  stated.  Without  doubt, 
it  denotes  not  merely  freedom  from  bodily  restraint  but 
also  the  right  of  the  individual  to  contract,  to  engage 
in  any  of  the  common  occupations  of  life,  to  acquire 
useful  knowledge,  to  marry,  to  establish  a  home  and 
bring  up  children,  to  worship  God  according  to  the 
dictates  of  his  own  conscience,  and  generally  to  enjoy 
those  privileges  long  recognized  at  common  law  as 
essential  to  the  orderly  pursuit  of  happiness  by  free 
men.  Slaughter-House  Cases,  16  Wall.  36;  Butchers' 
Union  Co.  V.  Crescent  City  Co.,  1 1 1  U.  S.  746;  Yick 
Wo  V.  Hopkins,  118  U.  S.  356;  Minnesota  V.  Bar¬ 
ber,  136  U.  S.  313;  Allgeyer  V.  Louisiana,  165  U.  S. 
578;  Lochner  V.  New  York,  198  U.  S.  45;  Twining 
V.  New  Jersey,  211  U.  S.  78;  Chicago,  Burlington  U 
Quincy  R.  R.  Co.  V.  McGuire,  219  U.  S.  549;  Truax 
V.  Raich,  239  U.  S.  33;  Adams  V.  Tanner,  244  U.  S. 
590;  New  York  Life  Ins.  Co.  V.  Dodge,  246  U.  S. 
357;  Truax  V.  Corrigan,  257  U.  S.  312;  Adkins  v. 
Children  s  Hospital,  261  U.  S.  525;  Wyeth  v.  Cam¬ 
bridge  Board  of  Health,  200  Mass.  474.  The  estab- 


38 


lished  doctrine  is  that  this  liberty  may  not  be  inter¬ 
fered  with,  under  the  guise  of  protecting  the  public 
interest,  by  legislative  action  which  is  arbitrary  or 
without  reasonable  relation  to  some  purpose  within 
the  competency  of  the  State  to  effect.  Determination 
by  the  legislature  of  what  constitutes  proper  exercise 
of  police  power  is  not  final  or  conclusive  but  is  subject 
to  supervision  by  the  courts.  Lawton  V.  Steele,  152 
U.  S.  133,  137. 

“The  American  people  have  always  regarded  edu¬ 
cation  and  acquisition  of  knowledge  as  matters  of 
supreme  importance  which  should  be  diligently  pro¬ 
moted.  The  Ordinance  of  1787  declares,  ‘Religion, 
morality,  and  knowledge  being  necessary  to  good  gov¬ 
ernment  and  the  happiness  of  mankind,  schools  and 
the  means  of  education  shall  forever  be  encouraged.' 
Corresponding  to  the  right  of  control,  it  is  the  natural 
duty  of  the  parent  to  give  his  children  education  suit¬ 
able  to  their  station  in  life;  and  nearly  all  the  States, 
including  Nebraska,  enforce  this  obligation  by  com¬ 
pulsory  laws." 

The  cases  above  mentioned  against  the  State  of  Ohio 
were  similarly  decided  on  the  authority  of  the  Nebraska 
case. 

Then  came  before  the  Supreme  Court  of  the  United 
States,  in  March,  1925,  the  Oregon  School  Cases,  and 
Mr.  Justice  McReynolds  delivered  its  unanimous  deci¬ 
sion  holding  that  the  statute  of  the  State  of  Oregon  was 
unconstitutional  and  void  because  beyond  the  legitimate 
power  of  any  State  to  interfere  with  the  liberty  and  con¬ 
stitutional  rights  of  parents.  This  opinion  should  like- 


39 


wise  be  studied  in  its  entirety,  but  its  tenor,  so  far  as 
directly  applicable  to  the  present  opinion  of  counsel,  may 
be  gathered  from  the  following  extracts  (pp.  534-5)  : 

“The  inevitable  practical  result  of  enforcing  the  Act 
under  consideration  would  be  destruction  of  appellees' 
[/.  e.,  the  Catholic  Sisters']  primary  schools,  and  per¬ 
haps  all  other  private  primary  schools  for  normal 
children  within  the  State  of  Oregon.  These  parties  are 
engaged  in  a  kind  of  undertaking  not  inherently  harm¬ 
ful,  but  long  regarded  as  useful  and  meritorious.  Cer¬ 
tainly  there  is  nothing  in  the  present  records  to  indicate 
that  they  have  failed  to  discharge  their  obligations  to 
patrons,  students  or  the  State.  And  there  are  no 
peculiar  circumstances  or  present  emergencies  which 
demand  extraordinary  measures  relative  to  primary 
education. 

“Under  the  doctrine  of  Meyer  V.  Nebraska  [  1 923  ] , 
262  U.  S.  390,  we  think  it  entirely  plain  that  the  Act 
of  1922  unreasonably  interferes  with  the  liberty  of 
parents  and  guardians  to  direct  the  upbringing  and 
education  of  children  under  their  control.  As  often 
heretofore  pointed  out,  rights  guaranteed  by  the  Con¬ 
stitution  may  not  be  abridged  by  legislation  which  has 
no  reasonable  relation  to  some  purpose  within  the 
competency  of  the  State.  The  fundamental  theory  of 
liberty  upon  which  all  governments  in  this  Union 
repose  excludes  any  general  power  of  the  State  to  stand¬ 
ardize  its  children  by  forcing  them  to  accept  instruction 
from  public  teachers  only.  The  child  is  not  the  mere 
creature  of  the  State;  those  who  nurture  him  and  direct 
his  destiny  have  the  right,  coupled  with  the  high  duty. 


40 


to  recognize  and  prepare  him  for  additional  obliga¬ 
tions." 

The  Mexican  Constitution  of  1857  had  provided 
(Article  3)  that  instruction  should  be  free,  and  under  this 
guaranty  the  Roman  Catholic  Church  had  been  allowed 
to  develop,  so  far  as  it  could  possibly  do  so  in  view  of  the 
confiscation  of  its  property  without  any  compensation  or 
indemnity  whatever  under  Article  27  of  the  same  Consti¬ 
tution,  which,  however,  was  not  as  rigorous  as  the  confis¬ 
cation  provided  for  in  1917.  In  1857  the  Church  was 
permitted  "to  acquire  title  to,  or  administer  .  .  .  the 

buildings  immediately  and  directly  destined  to  the  services 
or  purposes  of  the  said  [religious]  corporations  and  insti¬ 
tutions";  but  the  Constitution  of  1917  confiscated  all 
these  buildings  without  compensation  of  any  kind. 

Under  the  Mexican  Constitution  of  1857  and  a  for¬ 
tiori  under  the  provisions  quoted  above  from  the  Consti¬ 
tution  of  1917,  it  must  be  manifest  that  the  Roman 
Catholic  Church  could  not  acquire  the  capital  necessary  to 
establish  schools  and  colleges  and  to  provide  the  necessary 
regular  income  for  operating  expenses.  Development  in 
education  could  not  fairly  be  expected  and  certainly  not 
after  the  overthrow  of  President  Diaz  and  stable  Govern¬ 
ment  and  the  substitution  of  revolutionary  and  bolshe¬ 
vistic  control  under  President  Calles. 

The  Mexican  Constitution  of  1917,  whilst  in  one 
breath  declaring  that  ""Instruction  is  free,”  proceeds 
in  the  next  absolutely  to  deny  that  right.  Thus,  we  find 
the  following: 

"Art.  3.  Instruction  is  free;  that  given  in  public 
institutions  of  learning  shall  be  secular.  Primary  in- 


41 


struction,  whether  higher  or  lower,  given  in  private 
institutions  shall  likewise  be  secular, 

“No  religious  corporation  nor  minister  of  any  relig¬ 
ious  creed  shall  establish  or  direct  schools  of  primary 
instruction. 

“Private  primary  schools  may  be  established  only 
subject  to  official  supervision. 

“Primary  instruction  in  public  institutions  shall  be 
gratuitous.” 

The  first  three  words  of  this  above  quoted  article  were 
in  the  1857  Constitution;  the  language  following  them 
and  italicized  was  added  in  1917. 

The  Presidential  Decree  of  June  14,  1926,  enforces 
the  constitutional  provisions  by  oppressive  and  cruel  sanc¬ 
tions,  which  are  obviously  intended  to  prevent  parents 
from  having  their  children  educated  with  any  religious 
influence  or  religious  instruction  whatsoever.  Some  of 
these  decretal  enactments  are  as  follows: 

“Article  3.  The  instruction  that  may  be  given  in 
official  educational  establishments  shall  be  secular;  like¬ 
wise  that  given  in  the  higher  and  lower  primary 
branches  of  private  educational  establishments. 

“Violators  of  this  provision  shall  be  punished  sum¬ 
marily  with  a  fine  of  not  to  exceed  500  pesos,  or  in 
lieu  of  such  a  fine,  with  arrest  that  shall  not  exceed  fif¬ 
teen  days. 

“In  case  of  a  second  offense,  the  transgressor  shall 
be  punished  with  ‘major'  arrest  and  a  fine  of  the  sec¬ 
ond  class,  and  in  addition,  the  authorities  shall  order 
the  closing  of  the  establishment  of  learning. 


42 


“Article  4.  No  religious  corporation  or  minister  of 
any  cult  shall  be  permitted  to  establish  or  direct  schools 
of  primary  instruction. 

“Those  responsible  for  the  infraction  of  this  pro¬ 
vision  shall  be  punished  with  a  fine  not  to  exceed  500 
pesos,  or  in  lieu  thereof,  with  arrest  of  not  more  than 
fifteen  days,  and  in  addition  the  authorities  shall  order 
the  immediate  closing  of  the  teaching  establishment. 

“Article  5.  Private  primary  schools  may  be  estab¬ 
lished  only  by  subjecting  themselves  to  official  super¬ 
vision.  Transgressors  of  this  provision  shall  be  pun¬ 
ished  by  a  fine  of  500  pesos,  or  in  lieu  thereof,  by 
arrest  of  not  to  exceed  fifteen  days. 

“Article  12.  For  no  reason  shall  confirmation  be 
made,  exemption  issued,  or  any  other  procedure  take 
place  that  may  have  for  its  purpose  the  official  vali¬ 
dating  of  the  studies  made  in  establishments  destined 
for  the  professional  instruction  of  ministers  of  religion. 

“Transgressors  of  this  provision  shall  be  removed 
from  the  employment  or  office  which  they  hold,  and 
shall  be  barred  from  other  such  employment  in  the 
same  branch  for  a  period  of  from  one  to  three  years. 

“Any  exemption  or  procedure  to  which  the  first  part 
of  this  article  refers  shall  be  null  and  shall  carry  with 
it  the  nullification  of  the  professional  title  the  obtain¬ 
ing  of  which  may  have  been  a  part  of  the  infraction  of 
this  provision." 

There  can  be  no  reasonable  doubt,  in  the  opinion  of 
the  undersigned  American  counsel,  that  these  constitu¬ 
tional  provisions  and  decretal  enactments  would  be  de¬ 
clared  unjust  and  void  and  beyond  the  power  of  any  legis- 


43 


lative  body  if  ever  enacted  by  our  Federal  Congress  or  by 
any  State  Legislature.  It  is  deemed  unnecessary  further 
to  elaborate  the  discussion  of  the  constitutional  princi¬ 
ples  that  condemn  these  several  oppressive  and  tyrannical 
measures  as  in  plain  conflict  with  religious  liberty,  sound 
principles  of  natural  justice  and  the  fundamental  laws  of 
every  free  government  worthy  of  that  name.  To  argue, 
as  some  have  attempted,  that  under  the  Mexican  Consti¬ 
tution  of  1917,  '‘instruction  is  free/'  is  to  jeer  at  the 
public  opinion  of  the  civilized  world.  No  country  except 
Soviet  Russia  and  the  France  of  the  Jacobin  Terror  has 
ever  before  so  affronted  the  intelligence,  the  conscience  and 
the  sense  of  right  and  justice  of  civilized  peoples.  Such 
enactments  are  only  consistent,  if  at  all  rational,  with  the 
deliberate  purpose  of  destroying  or  totally  subverting 
all  religions  in  Mexico,  in  emulation  of  the  inhuman, 
cruel  and  repulsive  attempts  to  suppress  religion  by  the 
Bolsheviks  in  Russia,  which  have  so  shocked  the  whole 
civilized  world. 


5. 

INTERNATIONAL  RELATIONS. 

Many  historical  precedents  of  action  on  the  part  of 
the  Government  of  the  United  States  of  America  as  well 
as  of  other  countries  could  be  cited  which  would  abun¬ 
dantly  support  a  protest  or  remonstrance  and  even  armed 
intervention  at  the  present  time  in  Mexico,  in  order  to 
assure  to  the  Mexican  people  religious  liberty.  They  can 
be  found  in  the  authoritative  works  of  writers  on  inter¬ 
national  relations  from  Grotius  (1583-1645),  De  Jure 
Belli  et  Pads,  to  Professor  Sto well's  comprehensive  re¬ 
view  in  his  work  Intervention  in  International  Law. 


44 


President  Coolidge,  Secretary  of  State  Kellogg  and 
Ambassador  Sheffield  are  familiar  with  these  precedents 
and  this  international  usage.  These  American  statesmen, 
who  are  now  in  charge  of  our  relations  with  the  Mexican 
Government,  are  certainly  in  full  sympathy  with  Ameri¬ 
can  principles  of  civil  and  religious  liberty  and  appreciate, 
as  Chancellor  Kent  declared,  that  “the  suppression  of 
either  of  them,  for  any  length  of  time,  will  terminate  the 
existence  of  the  other.”  In  fact  both  civil  and  religious 
liberty  have  long  since  terminated  in  Mexico,  and  these 
conditions  must  be  a  matter  of  profound  anxiety  and 
daily  concern  to  our  Government. 

The  problem  of  dealing  with  the  Mexican  Govern¬ 
ment  is  extremely  delicate  and  complex.  The  concep¬ 
tions  of  civil  and  religious  liberty  of  many  Mexicans  are 
not  our  conceptions  or  those  of  other  liberal  and  civil¬ 
ized  peoples;  in  the  domain  of  what  we  call  liberty 
they  speak  a  very  different  language;  and  they  are  ex¬ 
tremely  resentful  of  foreign  advice  or  interference  and 
particularly  of  advice  or  interference  on  our  part.  The 
Monroe  Doctrine,  which  protects  them  against  the  en¬ 
forcement  of  European  rights  and  enables  them  under  our 
protection  to  flout  great  nations,  has  generated  no  appre¬ 
ciation  or  gratitude.  Any  such  natural  sentiment  or  feel¬ 
ing  of  gratitude  has  long  been  obscured,  if  not  entirely 
submerged,  by  cherished  wrongs  such  as  the  annexation 
of  Texas,  the  War  of  1848,  and  the  taking  by  us  of 
immensely  valuable  territory.  The  relations  between  the 
two  nations  have  been  frequently  stormy.  Our  treatment 
at  times  has  inflamed  a  sensitive  and  proud  people  to 
intense  indignation  and  resentment,  although  at  the  time 
of  their  successful  revolution  against  Spain,  Augustin  de 


45 


Iturbide,  in  1821,  not  only  expressed  gratitude  to  the 
United  States,  but  declared  his  belief  that  Mexico  and  the 
United  States  were  “destined  to  be  united  in  the  bonds  of 
the  most  intimate  and  cordial  fraternity."  Unfortunately 
and  lamentably,  dissension  and  trouble  soon  arose,  inten¬ 
sified  as  time  passed  by  our  annexation  of  Texas  and  the 
Mexican  War  of  1848  down  to  the  high-handed  and  to 
many  wholly  unwarranted  expedition  which  President 
Wilson  sent  to  occupy  Vera  Cruz  in  1914.  These  his¬ 
torical  grievances  and  aggressions  have  been  very  interest¬ 
ingly  treated  in  Professor  Rippey’s  recent  book  entitled 
The  United  States  and  Mexico, 

It  is  not,  therefore,  at  all  unnatural,  although  deplor¬ 
able,  that  the  Mexican  people  should  harbor  resentment 
and  suspicion  against  their  powerful  and  irresistible  neigh¬ 
bor  on  all  their  northern  frontier  from  the  Atlantic  to  the 
Pacific;  and  that  from  this  resentment  and  suspicion,  so 
readily  played  on  by  demagogues,  arises  the  great  diffi¬ 
culty  in  dealing  now  with  the  question  of  religious  lib¬ 
erty.  Interference  on  our  part  might  do  the  cause  of 
liberty  and  religion  more  harm  than  any  possible  good. 
As  Senator  Newlands  once  said  of  a  proposal  to  intervene 
in  Mexico,  we  might  thereby  “open  a  Pandora’s  box  of 
trouble  for  the  United  States  for  the  next  twenty  years.” 
History  has  recorded  its  tragedies  in  vain  for  those  who 
do  not  realize  that  interference  and  intervention  by  the 
United  States  in  Mexico  in  order  to  compel  religious 
liberty,  might  precipitate  the  horrors  and  atrocities  of 
civil  war  and  that  worst  of  all  scourges,  a  religious 
civil  war.  Therefore,  the  undersigned  American  counsel 
is  persuaded  that  thoughtful  Catholics  will  not  endeavor 
by  agitation,  political  or  otherwise,  to  force  the  hand  of 


46 


our  Government,  far  better  advised  as  it  must  be  of  con¬ 
ditions  in  Mexico  than  others  usually  are.  This  respon¬ 
sibility  towards  the  present  generation  and  future  genera¬ 
tions  weighs  heavily  enough  upon  our  President.  No 
President  since  Washington  has  been  more  deeply  religious 
than  President  Coolidge;  no  President  has  ever  felt  more 
strongly  that  civil  and  religious  liberty  are  inseparable 
and  cannot  exist  apart  in  any  country;  and  when  he  can 
effectively  act  by  moral  persuasion  and  sympathy  or 
otherwise,  he  will  speak  for  religious  liberty  on  this  con¬ 
tinent  in  no  uncertain  or  temporizing  terms.  Seldom 
before  has  language  been  more  appreciative  of  religious 
liberty  than  that  contained  in  the  noble  and  eloquent 
address  of  his  Secretary  of  Labor,  Hon.  James  J.  Davis 
(a  very  distinguished  Protestant,  Mason,  Odd  Fellow, 
etc.),  at  the  Twenty-eighth  International  Eucharistic 
Congress  at  Chicago  in  June  of  this  year,  when  he  said 
in  part  as  follows: 

"It  gives  me  great  pleasure,  in  addressing  this 
Catholic  audience,  to  call  attention  to  the  fact  that 
the  members  of  your  communion  who  settled  in  Mary¬ 
land  share  with  Roger  Williams,  the  founder  of  Rhode 
Island  and  Providence  plantations,  in  the  honor  of  be¬ 
ing  the  first  American  settlers  to  establish  the  princi¬ 
ples  of  religious  toleration.  The  Catholics  of  Mary¬ 
land  respected  the  conscience  of  all  men  and  women  in 
that  province.  They  allowed  the  men  and  women  of 
the  various  protestant  persuasions  the  same  liberty  that 
they  asked  for  themselves.  The  student  of  the  history 
of  religious  freedom  in  America  knows  that  in  accord¬ 
ing  toleration  to  all  faiths,  the  Catholics  of  America,  in 
the  one  original  colony  that  was  settled  by  them,  built 


47 


a  monument  to  the  great  cause  of  religious  freedom 
more  enduring  than  one  of  bronze  or  marble. 

“Catholics  have  reason  to  be  proud  of  the  growth  of 
their  faith  in  America.  From  humble  beginnings  the 
Church  has  grown  by  leaps  and  bounds  until  to-day 
it  has  nearly  nineteen  million  communicants.  Many  of 
the  leading  citizens  of  our  country  to-day  are  of  your 
faith.  They  are  graduates  of  our  universities.  They 
are  to  be  found  in  editorial  chairs;  they  are  leaders  in 
the  arts  and  sciences:  many  are  illustrious  men  of  let¬ 
ters;  they  have  taken  an  eminent  rank  in  the  profes¬ 
sions  and  in  business.  Catholics  are  found  in  our  halls 
of  legislation  and  upon  the  bench.  Two  of  their 
number  have  been  Chief  Justices  of  the  Supreme 
Court.  On  every  field  of  battle  in  which  America  has 
engaged  they  have  shed  their  blood  in  behalf  of  the 
land  of  their  birth,  or  the  land  of  their  adoption,  and 
on  more  than  one  hotly  contested  field  a  Catholic  gen¬ 
eral  has  led  the  American  arms.  The  patriotism  of 
our  Catholic  citizens  is  not  open  to  dispute.  If  there 
is  any  prejudice  against  Catholics  in  America,  it  comes 
from  persons  who  make  a  specialty  of  prejudice,  and, 
like  all  other  countries,  we  have  a  few  who  do. 

“So  far  as  the  bulk  of  our  people  are  concerned, 
their  minds  are  by  nature  tolerant  of  all  that  is  tol¬ 
erant.  America  has  developed  a  neighborly  spirit,  in 
which  all  men  and  women  who  breathe  a  spirit  of 
peace  and  good  will  feel  themselves  at  home.  We  have 
no  quarrel  with  any  man’s  religion;  and  any  nation 
that  refuses  to  grant  freedom  of  worship  is  a  nation 
that  must  realize  sooner  or  later  that  it  has  made  the 
profoundest  of  mistakes. 


48 


“There  are  elements  among  us,  as  in  other  lands, 
which  are  so  dissatisfied  with  life,  or,  rather,  with  the 
life  that  they  know  from  experience  that  they  desire 
to  destroy  our  American  institutions.  These  advo¬ 
cates  of  revolution  are  men  who  abhor  all  religion,  and 
believe  in  neither  God  nor  the  life  eternal.  They  are 
materialists  against  whom  all  who  believe  in  the  valid¬ 
ity  of  spiritual  ideals  must  set  a  face  like  flint.  The 
Catholic  church  has  stood  like  a  wall  of  adamant 
against  the  vicious  revolutionary  procedures  of  this 
class,  which  are  urged  ostensibly  in  behalf  of  labor, 
but  which  really  owe  their  origin  in  the  will  of  a  few 
to  power.  Whatever  a  man’s  religious  faith  may  be, 
if  he  have  one,  he  can  have  no  intellectual  commerce 
with  this  type  of  revolutionist.” 

This  has  been  the  elevated  and  inspiring  spirit,  like¬ 
wise,  of  the  Papacy  and  the  Mexican  Hierarchy.  History 
admonishes  them  of  the  horrors  of  civil  war  and  of  the 
danger  of  inviting  interference  by  foreign  powers  and 
armies  to  compel  what  the  aggressors  conceive  to  be 
either  religious  liberty  or  the  only  true  faith.  The  splen¬ 
did  glory  of  the  Crusades  was  dimmed  by  awful  atrocities 
and  barbarities.  The  menace  of  the  invasion  of  England 
by  Philip  II  and  the  great  Spanish  Armada  during  the 
reign  of  Queen  Elizabeth,  which  had  much  of  the  char¬ 
acter  of  a  crusade,  and  other  similar  threatened  invasions 
by  Catholic  Spain  and  Catholic  Erance  of  Protestant 
England  on  religious  grounds,  did  more  than  any  other 
cause  to  alienate  the  English  people  from  the  Church  of 
Rome.  As  a  great  English  historian  has  said,  “The  work 
of  the  Jesuits  was  undone  in  an  hour.  The  spirit  of 
national  unity  proved  stronger  than  religious  strife.” 


49 


England  was  thus  lost  for  centuries  to  the  Catholic 
Church  by  the  proud  spirit  of  resentful  nationalism. 
And  many  students  profoundly  believe  that  the  Mas¬ 
sacre  of  Saint  Bartholomew  might  never  have  stained  the 
annals  of  Catholic  France  if  the  Huguenots  had  not  in¬ 
flamed  religious  as  well  as  intense  national  resentment  by 
inviting  Spain  and  Germany  to  invade  France  in  aid  of 
the  Huguenot  cause.  Hence,  the  wisdom  of  the  refusal 
of  the  Papacy  and  the  Mexican  Hierarchy  to  approve 
either  the  inviting  of  foreign  intervention  by  force  or  the 
drawing  of  the  sword  of  religious  civil  war  with  its  in¬ 
evitable  horrors  and  the  inevitable  aftermath  of  revenge¬ 
ful  bitterness  and  indelible  resentments.  So,  too,  the  wis¬ 
dom  of  the  determination  of  the  Papacy  not  to  approve 
the  organization  of  a  distinctively  political  Catholic 
party  in  Mexico,  for  experience  and  history  in  other  coun¬ 
tries  have  taught  that  the  Catholic  Church  never  can 
profit  by  entering  into  political  strifes  or  by  being  drawn 
into  the  political  combinations  and  compromises  which 
politicians  often  deem  vitally  necessary  to  a  political 
party,  but  which  the  Papacy  cannot  approve.  Its  eternal 
principles  cannot  be  made  a  pendant  to  temporary  politi¬ 
cal  campaigns.  It  may  lose  now  by  such  an  attitude  of 
promoting  peace  among  men  at  any  cost  or  sacrifice  and 
by  consistently  refusing  to  bend  to  ephemeral  expediency, 
but  it  will  gain  in  the  long  run  when  truth  must  finally 
prevail. 

New  York,  November,  1926. 

William  D.  Guthrie 
of  the  American  Bar. 


50 


Appendix  I  to  Opinion  of  American  Counsel. 


TEXT  OF  THE  STATEMENT  OF  THE  EPISCOPAL  COMMITTEE 
OF  THE  MEXICAN  HIERARCHY.* 


“As  Congress  refused  to  take 
into  consideration  the  petition  pre¬ 
sented  by  the  episcopate  in  which 
the  Bishops  requested  certain  re¬ 
forms  in  the  Federal  Constitution, 
the  Episcopal  Committee  thinks  it 
its  duty  to  comment  on  this  action, 
not  only  to  the  Reverend  Archbish¬ 
ops,  Bishops  and  clergy  and  to  the 
IMexican  Catholic  people,  but  also 
to  the  entire  nation  and  to  the 
whole  world  which  is  favorably  in¬ 
terested  in  a  people  struggling  to 
obtain  liberty  of  conscience,  educa¬ 
tion  and  religion,  liberties  which 
all  civilized  peoples  of  the  world 
are  enjoying. 

“The  Mexican  episcopate  in  a 
precise  manner  has  made  known  to 
the  entire  world  in  various  state¬ 
ments  the  true  situation  of  the 
Catholic  Church  in  Mexico.  Ham¬ 
pered  by  the  present  laws  it  can¬ 
not  comply  with  the  eternal  mis¬ 
sion  which  its  Divine  Pounder, 
Jesus  Christ,  has  confided  to  it.  It 
has  made  known  all  the  efforts 
which  up  to  the  present  it  has  made 
to  regain  the  liberty  lost  through 
these  laws.  Unfortunately  the  sit¬ 
uation  has  not  changed. 

Solution  of  Conflict  Sought. 

“At  a  conference  between  mem¬ 
bers  of  the  episcopate  and  the 
President  of  the  Republic  the  lat¬ 


ter  invited  us  to  petition  the  Fed¬ 
eral  Congress  for  reforms  in  the 
Constitution  which  we  deemed  nec¬ 
essary. 

“We  stated  to  the  President  and 
to  the  press  that  although  our  Gov¬ 
ernment  is  democratic  and  repre¬ 
sentative  in  form  the  fact  is  that 
in  the  actual  legislative  Congresses 
the  Catholic  population  of  the 
country  is  not  represented. 

“In  spite  of  this  we  desired  to 
obey  the  suggestions  of  the  Presi¬ 
dent  in  order  to  show  that  we  were 
willing  to  employ  all  legal  methods 
to  arriA^e  at  a  solution  of  the 
lamentable  conflict. 

“The  words  of  the  President 
should  mean  to  us  and  to  all  Cath¬ 
olic  Mexican  people  a  guarantee 
that  when  we  sent  our  petition  to 
Congress  the  Executive  Avould  con¬ 
sider  this  proceeding  was  legal,  and 
the  promise  of  the  President  not 
to  prevent,  in  spite  of  his  philo¬ 
sophical  and  political  convictions, 
the  introduction  of  reforms  pro¬ 
posed  by  the  late  President,  Don 
Venustiano  Carranza,  should  be  an 
indication  of  the  good  faith  of  the 
Chief  Executive. 

Petition  Held  Moderate. 

“With  directions  so  precise,  we 
followed  the  road  indicated  and 
formulated  our  petition  to  Con- 


*  Reprinted  by  permission  from  The  New  York  Times,  October  3,  1926. 

51 


gress  with  all  moderation,  limiting 
ourselves  to  a  request  for  the  re¬ 
forms  absolutely  indispensable  for 
religious  liberty  and  in  aecord  with 
the  universal  dictates  of  conscience. 

“Our  petition  voiced  the  hopes 
of  an  immense  majority  of  the 
nation,  which  in  spite  of  the  lim¬ 
ited  time  endorsed  it  by  public 
manifestations,  by  innumerable 
telegrams  to  Congressmen  and  by 
nearl}^  half  a  million  signatures. 

“Under  these  circumstances  it 
was  logical  to  suppose  that  the 
members  of  the  Chamber  of  Depu¬ 
ties  would  not  fail  to  listen  to  the 
popular  demand,  and,  imitating  the 
conduct  of  the  President,  forget  all 
personal  prejudice  and  personal 
opinion,  and  grant  satisfaction  to 
the  public  that  they  represent. 

“Unfortunately,  in  contrast  with 
this  noble  and  serene  legal  and 
pacific  attitude  of  the  episcopate, 
clergy  and  Catholic  people,  the 
Chamber  of  Deputies  in  session  on 
the  twenty-third  of  last  month 
voted  to  reject  our  petition  on  the 
pretext  that  in  their  belief  the 
Bishops  and  Archbishops  of  the 
Ejiiscopal  Committee  had  not  the 
right  of  petition,  because,  accord¬ 
ing  to  Clause  3  of  Article  XXXVII 
of  the  Constitution,  they  had  lost 
their  citizenship. 

Right  op  Petition  Claimed. 

“We  wish  to  say  in  regard  to  the 
allegation  that  we  foreswore  the 
Constitution  when  we  swore  al¬ 
legiance  to  the  Church  that  we  are 
Mexican  citizens.  In  effect.  Article 
XXXIV  requires  only  that  a  per¬ 


son,  to  be  a  citizen  of  the  republic, 
shall  be  a  native  of  the  country,  18 
years  old  if  married,  21  if  not,  and 
have  an  honest  means  of  living. 

‘  ‘  The  Constitution  expressly 
gives  the  right  to  all  citizens  to 
petition  for  reform  of  the  laws. 

‘  ‘  Although  Congress  cannot 
demonstrate  that  we  have  made  an 
agreement  before  any  minister  of 
religion  not  to  respect  the  Constitu¬ 
tion,  it  is  true  that  we  have  de¬ 
clared  to  the  Roman  Pontiff  our  ob¬ 
jection  to  several  articles  of  our 
]\Iagna  Charta.  But  not  even  this 
circumstance  falls  in  the  strietest 
sense  within  the  text  of  Clause  3 
of  Article  XXXVII.  The  loss  of 
the  rights  of  citizenship,  so  far  as 
the  right  of  petition  in  political 
matters  is  concerned,  cannot  be 
brought  about  except  by  competent 
authority,  and  then  only  after  the 
interested  parties  have  been  heard. 
It  is  evident  that  the  Chamber  of 
Deputies  lacks  jurisdiction  in  this 
matter  completely. 

“We  should  be  false  to  our  duty 
if  we  did  not  protest  formally  be¬ 
fore  the  nation  and  history  against 
the  statement  that  we  have  lost  the 
status  of  Mexican  citizenship, 
which  was  the  basis  of  the  cham¬ 
ber’s  rejection  of  our  petition. 

‘  ‘  Following  the  noble  example  of 
Saint  Paul,  who  proclaimed  his 
Roman  citizenship,  with  love  and 
pride  w^e  claim  our  rights  to  Mex¬ 
ican  citizenship. 

Refusal  Declared  Unjust. 

“We  have  sought  recognition  of 
our  natural  rights,  backed  and  up- 


52 


held  by  eternal  justice,  recognized 
by  our  Constitution  and  by  all  civ¬ 
ilized  countries,  rights  which  con¬ 
stitute  the  indestructible  heritage 
of  free  peoples  in  all  countries  of 
the  world. 

“The  denial  of  our  petition  by 
(Congress  was  made  so  lightly  that 
one  newspaper  of  great  circulation 
commenting  on  it  said : 

“  ‘We  never  believed  that  Con¬ 
gressmen  in  the  Chamber  of  Depu¬ 
ties  would  base  their  rejection  upon 
reasons  so  futile  and  so  unworthy.’ 

“In  spite  of  all  this  the  Mexican 
Catholic  people  should  not  despair 
because  of  this  unjust  refusal. 
They  must  persevere  in  their  noble 
attitude.  They  must  continue 
working  through  all  legal  means 
until  their  ideas  triumph.  Only  bj" 


doing  this  can  they  avoid  blood¬ 
shed. 

“We  prelates  and  all  the  clergy 
and  Mexican  Catholic  people  will 
remain  firm  and  serene,  always  de¬ 
manding  liberty  through  legitimate 
methods.  We  expect  that  our  Leg¬ 
islators  will  reconsider  their  deci¬ 
sion  and  give  satisfaction  to  a  peo¬ 
ple  thirsting  for  liberty  and  jus¬ 
tice. 

“But  we  shall  make  known  to 
the  entire  world  that  if  Congress 
does  not  reconsider  its  decision  we 
shall  persevere  in  our  just  demands 
as  long  as  necessary  in  order  to  ob¬ 
tain  reforms  in  the  laws  and  the 
removal  of  the  religious  restrictions 
so  that  the  glorious  aura  of  re¬ 
ligious  liberty  will  shine  upon  our 
country.  ’  ’ 


53 


^andick  ^ress 


22  THAMES  STREET 
NEW  YORK 


